UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 19, 2015
SPRINT CORPORATION
(Exact Name of Registrant as Specified in Charter)
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Delaware |
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1-04721 |
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46-1170005 |
(State or other jurisdiction
of incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification No.) |
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6200 Sprint Parkway, Overland Park, Kansas |
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66251 |
(Address of principal executive offices) |
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(Zip Code) |
Registrants telephone number, including area code: (855) 848-3280
Not Applicable
(Former
name or former address, if changed since last report)
Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
This Current Report on Form 8-K is filed for the purpose of filing the
exhibits listed below as exhibits to Registration Statement No. 333-202170 of Sprint Corporation (the Company) in connection with the issuance and sale by the Company of $1,500,000,000 aggregate principal amount of 7.625% Notes due
2025, which are fully and unconditionally guaranteed by Sprint Communications, Inc.
Item 9.01. |
Financial Statements and Exhibits. |
(d) Exhibits
The following exhibits are filed with this report:
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Exhibit No. |
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Description |
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1.1 |
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Underwriting Agreement, dated February 19, 2015, among Sprint Corporation, Sprint Communications, Inc. and Citigroup Global Markets Inc., on behalf of itself and as the Representative of the several Underwriters |
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4.1 |
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Fourth Supplemental Indenture, dated as of February 24, 2015, to the Indenture, dated as of September 11, 2013, among Sprint Corporation, Sprint Communications, Inc. and The Bank of New York Mellon Trust Company, N.A. |
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4.2 |
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Specimen of 7.625% Notes due 2025 (included in Exhibit 4.1) |
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5.1 |
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Opinion of Jones Day |
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5.2 |
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Opinion of Polsinelli PC |
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23.1 |
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Consent of Jones Day (included in Exhibit 5.1) |
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23.2 |
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Consent of Polsinelli PC (included in Exhibit 5.2) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
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SPRINT CORPORATION |
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Date: February 24, 2015 |
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By: |
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/s/ Stefan K. Schnopp |
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Stefan K. Schnopp |
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Assistant Secretary |
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EXHIBIT INDEX
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Exhibit No. |
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Description |
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1.1 |
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Underwriting Agreement, dated February 19, 2015, among Sprint Corporation, Sprint Communications, Inc. and Citigroup Global Markets Inc., on behalf of itself and as the Representative of the several Underwriters |
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4.1 |
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Fourth Supplemental Indenture, dated as of February 24, 2015, to the Indenture, dated as of September 11, 2013, among Sprint Corporation, Sprint Communications, Inc. and The Bank of New York Mellon Trust Company, N.A. |
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4.2 |
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Specimen of 7.625% Notes due 2025 (included in Exhibit 4.1) |
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5.1 |
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Opinion of Jones Day |
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5.2 |
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Opinion of Polsinelli PC |
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23.1 |
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Consent of Jones Day (included in Exhibit 5.1) |
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23.2 |
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Consent of Polsinelli PC (included in Exhibit 5.2) |
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Exhibit 1.1
Execution Version
Sprint
Corporation
Underwriting Agreement
(Debt Securities)
February 19, 2015
Citigroup Global Markets
Inc.
As Representative of the
several underwriters named
in
Schedule I hereto
c/o Citigroup Global Markets Inc.
383
Greenwich Street
New York, NY 10013
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 terms Representative and 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. 333-202170), 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 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 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 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 5:45 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 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 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 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, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect and would not otherwise prevent the consummation of
the transactions contemplated by this Agreement.
(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 result in 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 individually or in the aggregate would not have 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.
(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 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 Companys principal executive officer and principal financial officer, or under their supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. The Companys 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
Companys 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 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.
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 Underwriters 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 Shearman & Sterling 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 24, 2015 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 Commissions close of business on the second business day following the date of this 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.
(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 Companys 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.
(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.
(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) 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.
(c) 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.
(d) 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.
(e) 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.
(f) You shall have received from Deloitte & Touche LLP, the Companys independent
registered public accounting firm, a letter, dated the date hereof, addressed to the Underwriters, in form and substance satisfactory to you.
(g) You shall have received from KPMG LLP, the Guarantors independent registered public accounting firm, a letter, dated the date
hereof, addressed to the Underwriters, in form and substance satisfactory to you.
(h) You shall have received from Deloitte &
Touche LLP, Clearwire Corporations independent registered public accounting firm or independent auditor, as applicable, a letter, dated the date hereof, addressed to the Underwriters, in form and substance satisfactory to you
(i) On the Closing Date, you shall have received from Deloitte & Touche LLP, the Companys 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 (f) of this Section 6.
(j) On the Closing Date, you shall have received from KPMG LLP, the Guarantors 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.
(k) On the Closing Date, you shall have received from Deloitte & Touche LLP, Clearwire Corporations independent registered
public accounting firm or independent auditor, as applicable, 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 (h) of this Section 6.
(l) 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.
(m) 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.
(n) 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, 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.
(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 partys choice at the indemnifying partys 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 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 partys 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 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. 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 Companys 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.
9. Defaulting Underwriters. (a) 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.
(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 will
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.
10. Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other
statements of the Company 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 or any of the officers,
directors 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 arms-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.
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
6200 Sprint Parkway
Overland Park, Kansas 66251
Facsimile No.: (913) 523-9802
Attn: General Counsel
If to the Representative:
Citigroup Global Markets Inc.
383 Greenwich Street
New York, NY 10013
Facsimile No.: (646) 291-1469
Attn: General Counsel
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 and
directors 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) 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.
(f) 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.
[Remainder of page intentionally left blank]
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/ Joseph J. Euteneuer |
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Name: |
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Joseph J. Euteneuer |
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Title: |
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Chief Financial Officer |
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SPRINT COMMUNICATIONS, INC. |
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By: |
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/s/ Joseph J. Euteneuer |
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Name: |
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Joseph J. Euteneuer |
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Title: |
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Chief Financial Officer |
[Remaining signatures on next page]
Underwriting Agreement Signature Page
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Agreed as of the date first above written |
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CITIGROUP GLOBAL MARKETS INC. |
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By: |
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/s/ Ross MacIntyre |
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Name: |
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Ross MacIntyre |
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Title: |
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Managing Director |
Acting on behalf of themselves and as the Representative of the several Underwriters
Underwriting Agreement Signature Page
SCHEDULE I
Underwriters
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Name |
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Amount |
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Citigroup Global Markets Inc. |
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$ |
210,000,000 |
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Goldman, Sachs & Co. |
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150,000,000 |
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J.P. Morgan Securities LLC |
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150,000,000 |
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Merrill Lynch, Pierce, Fenner &
Smith Incorporated |
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150,000,000 |
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Barclays Capital Inc. |
|
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88,500,000 |
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Credit Agricole Securities (USA) Inc. |
|
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88,500,000 |
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Credit Suisse Securities (USA) LLC |
|
|
88,500,000 |
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Deutsche Bank Securities Inc. |
|
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88,500,000 |
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Mitsubishi UFJ Securities (USA), Inc. |
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88,500,000 |
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Mizuho Securities USA Inc. |
|
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88,500,000 |
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RBC Capital Markets, LLC |
|
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88,500,000 |
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Scotia Capital (USA) Inc. |
|
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88,500,000 |
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SMBC Nikko Securities America, Inc. |
|
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88,500,000 |
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Wells Fargo Securities, LLC |
|
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37,500,000 |
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The Williams Capital Group, L.P. |
|
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6,000,000 |
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|
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Total |
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$ |
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 2025
Indenture
Indenture, dated September 11, 2013, between Sprint Corporation and The Bank of New York Mellon Trust Company, N.A.
Supplemental Indenture
Fourth 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 2025
This Issuer Free
Writing Prospectus, dated February 19, 2015, relates to the 7.625% Notes due 2025 (the Notes) of Sprint Corporation (the Issuer) and should be read together with the Preliminary Prospectus Supplement dated
February 19, 2015 relating to the Notes.
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Issuer: |
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Sprint Corporation |
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Security: |
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7.625% Notes due 2025 |
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Size: |
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$1,500,000,000 aggregate principal amount |
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Maturity Date: |
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February 15, 2025 |
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Coupon: |
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7.625% |
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Offering Price: |
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100.000% of face amount |
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Gross Proceeds: |
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$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: |
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7.625% |
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Spread to Treasury: |
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+551 basis points |
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Benchmark Treasury: |
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UST 2.000% due February 15, 2025 |
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Interest Payment Dates: |
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February 15 and August 15, commencing August 15, 2015 |
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Regular Record Dates: |
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February 1 and August 1 |
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Make-Whole Call: |
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Prior to November 15, 2024 (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: |
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At any time on or after November 15, 2024, at 100% of the principal amount of the Notes to be redeemed |
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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 Issuers Preliminary Prospectus Supplement dated February 19, 2015 relating to the Notes). |
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Settlement: |
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(T+3) February 24, 2015 |
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CUSIP: |
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85207U AJ4 |
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ISIN: |
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US85207UAJ43 |
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Joint Book-Running Managers: |
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Citigroup Global Markets Inc. Goldman, Sachs
& Co. J.P. Morgan Securities LLC Merrill Lynch, Pierce,
Fenner & Smith
Incorporated
Barclays Capital Inc. Credit Agricole Securities (USA) Inc.
Credit Suisse Securities (USA) LLC Deutsche Bank Securities
Inc. Mitsubishi UFJ Securities (USA), Inc. Mizuho Securities
USA Inc. RBC Capital Markets, LLC Scotia Capital (USA)
Inc. SMBC Nikko Securities America, Inc. |
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Senior Co-Manager: |
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Wells Fargo Securities, LLC |
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Co-Manager: |
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The Williams Capital Group, L.P. |
Sprint Corporation has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the 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 prospectus supplement, including the accompanying prospectus, if you request it by contacting Citigroup Global Markets Inc. at c/o Broadridge Financial Solutions, 1155 Long Island Avenue, Edgewood, NY 111717, emailing prospectus@citi.com or
calling toll free 1-800-831-9146; Goldman, Sachs & Co. at Attn: Prospectus Department, 200 West Street, New York, NY 10282, emailing prospectus-ny@ny.email.gs.com, calling 1-212-902-1171 or faxing 1-212-902-9316; 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 Merrill Lynch, Pierce, Fenner & Smith Incorporated at Attn.: Prospectus Department, 222 Broadway, 11th Floor, New York, NY
10038, emailing dg.prospectus_requests@baml.com or calling toll free 1-800-294-1322.
SCHEDULE V
Form of Opinion of Jones Day
SCHEDULE VI
Form of Opinion of Kansas Counsel
EXECUTION VERSION
Exhibit 4.1
SPRINT
CORPORATION,
as Issuer
SPRINT COMMUNICATIONS, INC.,
as
Guarantor
and
THE BANK OF
NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
FOURTH
SUPPLEMENTAL INDENTURE
Dated as of February 24, 2015
Creating a Series of Securities Designated
7.625% Notes due 2025
FOURTH SUPPLEMENTAL INDENTURE (this Supplemental Indenture), dated as
of February 24, 2015, 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 2025 (the 2025 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 2025 Notes under the terms of the Indenture as supplemented hereby;
WHEREAS, the
Guarantor acknowledges that the issuance of the 2025 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 2025 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 2025 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.
2025 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 Companys 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 Companys 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 Companys 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 Companys Voting Securities.
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Change of Control Triggering Event means the occurrence of both a
Change of Control and a Ratings Decline.
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 2025 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 2025 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 15, 2024.
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 Indenture.
Global Notes means, individually
and collectively, each of the global notes substantially in the form of Exhibit A.
Independent
Investment Banker means one of the Reference Treasury Dealers 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 Moodys 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 2025 Notes, or the equivalent rating of
any other Ratings Agency the Company selects as provided in the definition of Ratings Agencies.
Moodys means Moodys 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.
Permitted Holder means SoftBank Corp., a Japanese kabushiki kaisha, and its
Affiliates.
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Primary Treasury Dealer shall have the meaning set forth in the
definition of Reference Treasury Dealer.
Ratings Agencies means (1) Moodys and S&P; and
(2) if either Moodys or S&P ceases to rate the 2025 Notes or ceases to make a rating on the 2025 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 2025 Notes publicly available selected by the Company (as certified by an officers certificate),
which shall be substituted for Moodys 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 2025 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 Citigroup Global Markets Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Goldman, Sachs & Co. and J.P. Morgan Securities LLC, and their successors, and one other firm that is a primary U.S. Government securities dealer (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 2025 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 2025 Note, the amount of the next succeeding scheduled interest payment thereon will be deemed reduced by the amount of interest
accrued thereon to such Redemption Date.
S&P means Standard & Poors Rating Services,
a division of McGraw Hill Financial, Inc., or any successor to the rating agency business thereof.
Treasury
Rate means, with respect to an applicable Redemption Date for the 2025 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 three months before or after the First Par Call Date,
yields for the two published maturities most
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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.
SECTION 1.03 Applicability. The provisions contained in this
Supplemental Indenture shall apply only to the 2025 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 2025 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 2025 NOTES
SECTION 2.01 Terms. Pursuant to Section 301 of the Indenture, the terms of the 2025 Notes shall be as follows:
(a) The title of the 2025 Notes is 7.625% Notes due 2025.
(b) The 2025 Notes are the general unsecured senior obligations of the Company and shall rank equally with all other unsecured senior
obligations of the Company.
(c) The 2025 Notes will mature, and the principal of the 2025 Notes and all accrued and unpaid
amounts, including interest, thereon will be due and payable on February 15, 2025, or such earlier date as any of the 2025 Notes may become due and payable in accordance with the provisions of the Indenture and this Supplemental Indenture.
(d) The 2025 Notes will initially be issued in an aggregate principal amount of $1,500,000,000. The Company may issue
additional 2025 Notes from time to time without the consent of any Holders of the 2025 Notes. Any such additional 2025 Notes along with the 2025 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; provided that, in the case of Notes represented by Global Notes, for so long as may be required by the Securities Act or the procedures of
DTC, Euroclear Bank, S.A./N.V. (Euroclear) or Clearstream Banking, S.A. (Clearstream) (or a successor clearing system), such additional Notes shall be represented by one or more separate Global Notes in
accordance with the terms hereof and subject to applicable transfer or other restrictions.
(e) The 2025 Notes will be issued
in minimum denominations of $2,000 and thereafter in integral multiples of $1,000.
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(f) Interest on the 2025 Notes will accrue from February 24, 2015 or from the
most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually and be payable on February 15 and August 15 in each year, commencing August 15,
2015 (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 2025 Notes are registered in the Security Register on the preceding
February 1 or August 1 (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 2025 Notes are not entitled to any sinking fund.
(h) The 2025 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 2025 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 2025 Note conflicts with the terms of this Supplemental Indenture, this Supplemental Indenture shall govern.
ARTICLE THREE
THE
2025 NOTES
SECTION 3.01 Form. The 2025 Notes shall be in substantially the form of Exhibit A.
SECTION 3.02 Global Notes. The 2025 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 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
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in part); or (iii) there shall have occurred and be continuing a Default or Event of Default with respect to the 2025 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 2025 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 and Clearstream. 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
2025 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).
(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
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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 2025 Notes are so registered.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests. A Holder of a
Definitive Note may exchange such 2025 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 Holders 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 FOURTH 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 FOURTH 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.
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(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 2025 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 Companys order or at the Trustees 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 2025 Note selected for redemption in
whole or in part, except the unredeemed portion of any 2025 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.
(v) The
Company shall not be required (A) to issue, to register the transfer of or to exchange any 2025 Notes during a period beginning at the opening of business 15 days before the day of any selection of 2025 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 2025 Note so selected for redemption in whole or in part, except the unredeemed portion of any 2025 Note being redeemed in part,
(C) to register the transfer of or to exchange a 2025 Note between a record date and the next succeeding interest payment date or (D) to register the transfer of or to exchange a 2025 Note tendered and not withdrawn in connection
with a Change of Control Offer.
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(vi) Prior to due presentment for the registration of a transfer of any 2025 Note, the
Trustee, the Paying Agent and the Company may deem and treat the Person in whose name any 2025 Note is registered as the absolute owner of such 2025 Note for the purpose of receiving payment of principal of and interest on such
2025 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 Companys compliance with or have any responsibility with
respect to the Companys compliance with any federal or state securities laws in connection with registrations of transfers and exchanges of the 2025 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 2025 Notes (including any transfers between or among the Depositarys 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 2025 Notes for the payment of principal of, premium, if any, and interest on the 2025 Notes, and all
other amounts payable by the Company to the Holders of the 2025 Notes under the 2025 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.
SECTION 4.03 Subrogation. The Guarantor shall be subrogated to all rights of the holders of the
2025 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 2025 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.
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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 2025 Notes pursuant to Article XIII of the Indenture or the satisfaction and discharge of the obligations of the Company with respect to the 2025 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 2025 Notes, the
Indenture and this Supplemental Indenture.
ARTICLE FIVE
AMENDMENTS TO INDENTURE SECTIONS
The following amendments to the Indenture shall apply only to the 2025 Notes and not to any other series of Securities issued under the
Indenture and shall be effective for so long as any 2025 Notes remain Outstanding. The Indenture is amended by this Supplemental Indenture solely with respect to the 2025 Notes, as follows:
SECTION 5.01 Amendments to Article V.
(a) Solely with respect to the 2025 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 Fourth Supplemental Indenture dated as of February 24, 2015) 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 Fourth Supplemental Indenture dated as of February 24, 2015; or
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(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 2025 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 IX.
(a) Solely with respect to the 2025 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 release the Note Guarantee in accordance with the Fourth Supplemental Indenture dated as of February 24, 2015.
(b) Solely with respect to the 2025 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:
(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 Fourth Supplemental Indenture dated February 24, 2015).
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ARTICLE SIX
OPTIONAL REDEMPTION
SECTION 6.01 Optional Redemption. (a) The 2025 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 as a whole or in part, at the Companys option, on at least 30 days, but not more than 60 days, prior notice
mailed to the registered address of each Holder of the 2025 Notes to be redeemed, at a Redemption Price equal to (1) the greater of: (A) 100% of the principal amount of the 2025 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 but unpaid interest to, but not including, 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 2025 Notes and shall instead include the discounted amount with respect to the interest and principal
payments that would be payable upon redemption of the 2025 Notes on the First Par Call Date.
(b) The 2025 Notes will be redeemable at the
Companys option, as a 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 2025 Notes to be redeemed, plus accrued but unpaid interest to, but not including, the
applicable Redemption Date.
SECTION 6.02 Interest on 2025 Notes Redeemed; Deposit of Applicable Redemption Price.
On and after the Redemption Date, interest will cease to accrue on the 2025 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 2025 Notes to be redeemed on such date.
ARTICLE SEVEN
REPURCHASE OF THE 2025 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 2025 Notes, each
Holder of 2025 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 Holders 2025 Notes pursuant to an offer (a Change of
Control Offer) on the terms set forth in this Article Seven.
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 2025 Notes repurchased, plus accrued and unpaid interest on
the 2025 Notes, in each case, up 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
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of Control Triggering Event, sent a redemption notice for all the 2025 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
2025 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 hereunder
by virtue of such conflict.
SECTION 7.04 Acceptance of and Payment for 2025 Notes. On the Change of Control Payment
Date, the Company will, to the extent lawful:
(a) accept for payment all 2025 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
2025 Notes or portions thereof properly tendered; and
(c) deliver or cause to be delivered to the Trustee the 2025 Notes so
accepted together with an Officers Certificate stating the aggregate principal amount of 2025 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 2025 Notes are properly tendered, and the Trustee will have no responsibility for, and may conclusively rely upon, the Companys determination with respect thereto. Subject to receipt of
sufficient funds from the Company, the Paying Agent will promptly deliver to each registered Holder of 2025 Notes properly tendered, the Change of Control Payment for such 2025 Notes, and the Trustee will promptly authenticate and mail, or
cause to be transferred by book entry, to each Holder a new 2025 Note equal in principal amount to any unpurchased portion of the 2025 Notes surrendered, if any; provided that each such new 2025 Note will be in a principal
amount of $2,000 or an integral multiple of $1,000 thereafter. Any 2025 Note so accepted for payment will cease to accrue interest on and after the Change of Control Payment Date.
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
2025 Notes properly tendered and not withdrawn under the Change of Control Offer.
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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 2025 Notes receive an Investment Grade Rating by both of the Rating Agencies, and notwithstanding that the 2025 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 Companys 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.
SECTION 8.05 Governing Law. This Supplemental
Indenture and the 2025 Notes and the Note Guarantee shall be governed by and construed in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed by their respective officers thereunto duly authorized 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/ Joseph J. Euteuener |
Name: |
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Joseph J. Euteneuer |
Title: |
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Chief Financial Officer |
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SPRINT COMMUNICATIONS, INC. |
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By: |
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/s/ Joseph J. Euteuener |
Name: |
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Joseph J. Euteneuer |
Title: |
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Chief Financial Officer |
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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/ Lawrence M. Kusch |
Name: |
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Lawrence M. Kusch |
Title: |
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Vice President |
Exhibit A
Form of 2025 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 FOURTH
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 FOURTH 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 2025
CUSIP NO. 85207UAJ4
ISIN NO. US85207UAJ43
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 February 15, 2025, and to pay interest thereon from February 24, 2015, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi- annually on February 15 and August 15 in each year, commencing August 15, 2015, 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
2025 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 2025 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 2025 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 the February 1 or August 1 (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
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cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this 2025 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 Trustee, notice whereof shall be given to Holders of 2025 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 2025 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 2025 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 2025 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 2025 Note to be signed manually or by
facsimile by its duly authorized officer.
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SPRINT CORPORATION |
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By: |
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Name: |
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Title: |
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TRUSTEES 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 |
Dated:
A-5
Reverse of Note
SPRINT CORPORATION
7.625% Notes Due 2025
This 2025 Note is one of a duly authorized issue of securities of the Company (herein called the 2025 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 Fourth Supplemental Indenture, dated as of
February 24, 2015 (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 2025 Notes and of the terms upon which the 2025 Notes are, and are to be, authenticated and delivered.
The Company may redeem the 2025 Notes at any time and from time to time prior to the First Par Call Date, as a whole or in part, at the
Companys option, on at least 30 days, but not more than 60 days, prior notice mailed to the registered address of each Holder of the 2025 Notes to be redeemed, at a Redemption Price equal to the greater of:
(1) 100% of the principal amount of the 2025 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 but unpaid interest to, but not including, the 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 2025 Notes and shall instead include the discounted amount with respect to the interest and principal payments that would be payable
upon redemption of the 2025 Notes on the First Par Call Date.
The Company may redeem the 2025 Notes at any time on or after the First Par
Call Date, as a whole or in part, at the Companys option, at a Redemption Price equal to 100% of the principal amount of the 2025 Notes to be redeemed, plus accrued but unpaid interest to, but not including, 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.
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First Par Call Date means November 15, 2024.
Independent Investment Banker means one of the Reference Treasury Dealers appointed by the Company.
Reference Treasury Dealer means Citigroup Global Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Goldman, Sachs & Co. and J.P. Morgan Securities LLC and their successors, and one other firm that is a primary U.S. Government securities dealer (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 2025 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 2025 Note, the amount of the next succeeding scheduled interest payment thereon will be deemed reduced by the amount of interest accrued thereon to such Redemption Date.
Treasury Rate means, with respect to an applicable Redemption Date for the 2025 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 three 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 2025 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 2025 Note in part only, a new 2025 Note or
2025 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 2025 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 Holders 2025 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 2025 Notes, plus accrued and unpaid interest on the 2025 Notes up 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 2025 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 2025 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 2025 Notes receive an Investment Grade Rating by both of the Rating Agencies, and
notwithstanding that the 2025 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 Companys 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 Companys 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 Companys 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 Companys 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 Moodys
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 2025 Notes, or the equivalent
rating of any other Ratings Agency the Company selects as provided in the definition of Ratings Agencies.
Moodys
means Moodys 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) Moodys and S&P; and (2) if either Moodys or S&P ceases to rate the 2025 Notes or ceases to make a rating on the 2025 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 2025 Notes publicly available selected by the Company (as certified
by an officers certificate), which shall be substituted for Moodys 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 2025 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 & Poors Rating Services, a division of McGraw Hill Financial, 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
2025 Note or certain restrictive covenants and Events of Default with respect to this 2025 Note, as well as provisions for the satisfaction and discharge of obligations pursuant to this 2025 Note, in each case upon compliance with
certain conditions set forth in the Indenture.
If an Event of Default with respect to the 2025 Notes shall occur and be continuing,
the principal of the 2025 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
A-9
Holders of a majority in principal amount of all Outstanding Securities affected. With respect to any series of Securities, the consent of the 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 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 2025 Note shall be conclusive and binding upon such Holder and upon all future Holders of this 2025 Note and of any 2025 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 2025 Note.
As provided in and
subject to the provisions of the Indenture, the Holder of this 2025 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 2025 Notes, the Holders of not less than 25% in principal amount of the 2025 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 reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount
of 2025 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 2025 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, whether at maturity, by acceleration or otherwise, of all payment obligations of the Company under the 2025 Notes for the payment of principal of, premium,
if any, and interest on the 2025 Notes, and all other amounts payable by the Company to the Holders of the 2025 Notes under the 2025 Notes and the Indenture.
No reference herein to the Indenture and no provision of this 2025 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 2025 Note at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this 2025 Note is registerable in the
Security Register, upon surrender of this 2025 Note for registration of transfer at the office or agency of the Company in any place where
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the principal of and any premium and interest on this 2025 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 2025 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 2025 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, 2025 Notes of this series are exchangeable for a like
aggregate principal amount of 2025 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 2025 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 2025 Note is registered as the owner hereof for all purposes, whether or not this 2025 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 2025 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 2025 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 2025 Note.
THIS 2025 NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
All terms used in this 2025 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.
A-11
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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A-12
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s), assign(s), and transfer(s)
unto
Insert Taxpayer Identification No.
Please print or typewrite name and
address including zip code of assignee
the within Note and all right thereunder, hereby irrevocably constituting and appointing
attorney to transfer said Note on the books of the Company with full power of substitution in the premises.
Dated:
A-13
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 an 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) |
(Street Address) |
(City, State, and Zip Code) |
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, |
Social
Security or Other Taxpayer Identification Number |
A-14
Exhibit 5.1
NORTH POINT 901 LAKESIDE AVENUE CLEVELAND, OHIO
44114.1190
TELEPHONE: +1.216.586.3939 FACSIMILE: +1.216.579.0212
February 24, 2015
Sprint Corporation
6200 Sprint Parkway
Overland Park, Kansas 66251
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Re: |
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$1,500,000,000 aggregate principal amount of 7.625% Notes due 2025 of Sprint Corporation |
Ladies and Gentlemen:
We are acting as counsel for Sprint Corporation, a Delaware corporation (the Company), in connection with the
issuance and sale of $1,500,000,000 aggregate principal amount of the Companys 7.625% Notes due 2025 (the Notes), pursuant to the Underwriting Agreement, dated February 19, 2015, entered into by and among the
Company, Sprint Communications, Inc., a Kansas corporation (the Guarantor) and Citigroup Global Markets Inc., acting as representative of the several underwriters named therein. The Notes are being issued pursuant to the
Indenture, dated as of September 11, 2013 (the Base Indenture), by and between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (the Trustee), as supplemented by the
Fourth Supplemental Indenture, dated as of February 24, 2015 (the Supplemental Indenture), by and among the Company, the Guarantor and the Trustee (the Base Indenture as supplemented by the Supplemental Indenture being
referred to herein together as the Indenture). The Companys obligations under the Notes are being guaranteed by the Guarantor (the Guarantee).
In connection with the opinions expressed herein, we have examined such documents, records and matters of law as we have deemed relevant or
necessary for purposes of such opinions. Based on the foregoing, and subject to the further limitations, qualifications and assumptions set forth herein, we are of the opinion that:
1. The Notes constitute valid and binding obligations of the Company.
2. The Guarantee constitutes a valid and binding obligation of the Guarantor.
The opinions set forth above are subject to the following limitations, qualifications and assumptions:
For purposes of the opinions expressed herein, we have assumed that (i) the Trustee has authorized, executed and delivered the Indenture
and that the Indenture is a valid, binding and enforceable obligation of the Trustee and (ii) the Notes have been duly authenticated by the Trustee in accordance with the terms of the Indenture.
ALKHOBAR AMSTERDAM ATLANTA BEIJING
BOSTON BRUSSELS CHICAGO CLEVELAND COLUMBUS DALLAS
DUBAI DÜSSELDORF FRANKFURT HONG KONG
HOUSTON IRVINE JEDDAH LONDON LOS ANGELES MADRID
MEXICO CITY MIAMI MILAN MOSCOW
MUNICH NEW YORK PARIS PERTH PITTSBURGH RIYADH SAN DIEGO
SAN FRANCISCO SÃO PAULO SHANGHAI
SILICON VALLEY SINGAPORE SYDNEY TAIPEI TOKYO WASHINGTON
Sprint Corporation
February
24, 2015
Page
2
For the purposes of our opinions set forth in paragraph 2 above, we have further assumed that
(a) the Guarantor is a corporation existing and in good standing under the laws of the State of Kansas; (b) the Indenture and the Guarantee (i) have been authorized by all necessary corporate action of the Guarantor and (ii) have
been executed and delivered by the Guarantor under the laws of the State of Kansas; and (c) the execution, delivery, performance and compliance with the terms and provisions of the Indenture and the Guarantee by the Guarantor does not violate
or conflict with the laws of the State of Kansas, the provisions of the Amended Articles of Incorporation of the Guarantor, the Amended and Restated Bylaws of the Guarantor or any rule, regulation, order, decree, judgment, instrument or agreement
binding upon or applicable to the Guarantor or its properties.
The opinions expressed herein are limited by (i) bankruptcy,
insolvency, reorganization, fraudulent transfer and fraudulent conveyance, voidable preference, moratorium or other similar laws, and related regulations and judicial doctrines from time to time in effect relating to or affecting creditors
rights and remedies generally, and (ii) general equitable principles and public policy considerations, whether such principles and considerations are considered in a proceeding at law or in equity.
As to facts material to the opinions and assumptions expressed herein, we have relied upon oral or written statements and representations of
officers and other representatives of the Company and the Guarantor. The opinions expressed herein are limited to the laws of the State of New York and the General Corporation Law of the State of Delaware, in each case as currently in effect, and we
express no opinion as to the effect of the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.1
to the Current Report on Form 8-K dated the date hereof filed by the Company and incorporated by reference into the Registration Statement on Form S-3 (Reg. No. 333-202170) (the Registration Statement), filed by the
Company to effect the registration of the Notes under the Securities Act of 1933 (the Act) and to the reference to Jones Day under the caption Legal Matters in the prospectus constituting a part of such
Registration Statement. In giving such consent, we do not hereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
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Very truly yours, |
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/s/ Jones Day |
Exhibit 5.2
900 West 48th Place, Suite 900, Kansas City, Missouri, 64112 816.753.1000
February 24, 2015
Sprint Corporation
6200 Sprint Parkway
Overland Park, KS 66251
Ladies and Gentlemen:
We are special Kansas
counsel to Sprint Communications, Inc., a Kansas corporation (the Guarantor), a wholly-owned subsidiary of Sprint Corporation, a Delaware corporation (the Company), in connection with the public offering of
$1,500,000,000 aggregate principal amount of the Companys 7.625% notes due 2025 (the Notes), to be guaranteed (the Guarantee) by the Guarantor, pursuant to the Underwriting Agreement dated
February 19, 2015, by and among the Company, Guarantor and Citigroup Global Markets Inc., as the representative of the several underwriters (collectively, the Underwriters) listed on Schedule I attached thereto (the
Underwriting Agreement). The offering by the Company and Guarantor is being made pursuant to a prospectus supplement dated February 19, 2015 and the accompanying base prospectus dated February 19, 2015 (such documents,
collectively, the Prospectus) composing part of the Companys automatic shelf registration statement on Form S-3ASR (File No. 333-202170) filed with the U.S. Securities and Exchange Commission (the
Commission) on February 19, 2015 (as the same may be amended from time to time, the Registration Statement) relating to the proposed offer and sale of an unspecified principal amount of the Companys
debt securities, including the Notes and the related Guarantee. This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the Securities
Act). The Company is issuing the Notes pursuant to an indenture dated as of September 11, 2013 (the Base Indenture), by and between the Company and The Bank of New York Mellon Trust Company, N.A., as indenture
trustee (the Indenture Trustee), as supplemented by the fourth supplemental indenture, dated as of February 24, 2015, by and among the Company, the Guarantor and the Indenture Trustee (the 2025 Notes
Indenture).
In such capacity, we have reviewed and relied only on:
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(A) |
copies of (I) the Amended Articles of Incorporation of the Guarantor (the Articles); (II) the Guarantors Amended and Restated Bylaws (the Bylaws); (III) the unanimous
written consent of the Board of Directors of the Guarantor (the Board) duly adopted by the Board as of February 17, 2015; (IV) resolutions adopted by the Board of Directors of the Company (the Company
Board) on July 10, 2013 and February 18-19, 2014; (V) resolutions adopted by the Finance Committee of the Company Board (the Finance Committee) on February 18, 2014; and (VI) unanimous written consent
minutes of the Pricing Subcommittee of the Finance Committee (the Pricing Subcommittee) dated as of February 20, 2015, all of which resolutions and consents have been certified to be correct and complete and in full force and
effect by an officer of the Guarantor or an officer of the Company, as applicable; |
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(B) |
the Notes and the 2025 Notes Indenture (including the Guarantee set forth therein); |
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(D) |
the Underwriting Agreement; |
polsinelli.com
Atlanta Chicago Dallas Denver Kansas
City Los Angeles New York Phoenix San Francisco St. Louis Washington,
DC Wilmington
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(E) |
a certificate from the Kansas Secretary of State indicating that the Guarantor is in good standing in Kansas as of February 9, 2015; |
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(F) |
a certificate of an officer of the Guarantor delivered to this law firm (the Guarantor Officers Certificate); |
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(G) |
a certificate of an officer of the Company delivered to this law firm (the Company Officers Certificate); and |
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(H) |
the Registration Statement and the Prospectus. |
The documents listed in clause (A) are
collectively referred to herein as the Corporate Records. The documents listed in clauses (B) through (D) are collectively referred to herein as the Transaction Documents. The documents listed in
clauses (E) through (H) are collectively referred to herein as the Due Diligence Information.
We
call your attention to the fact that, to the extent specifically qualified and limited below in paragraphs (a) through (g) and in the specific opinions rendered, we did not conduct an investigation that independently confirms the facts
upon which we render this opinion and, with your permission, we have assumed and relied upon the accuracy of all factual information set forth in and made by the Guarantor and the Company, as the case may be, in the Registration Statement, the
Prospectus, the Transaction Documents, the Guarantor Officers Certificate and the Company Officers Certificate, together with certain representations and statements made to us by public officials as to factual matters material to the
opinions expressed herein.
In rendering our opinions as to the good standing of the Guarantor, we have relied exclusively on a
certificate of a public official.
The opinions and statements expressed herein are subject to the following assumptions, comments,
conditions, exceptions, qualifications and limitations:
(a) Our opinions and statements expressed herein are restricted to
matters governed by the internal laws of the State of Kansas, without regard to conflict of laws.
(b) In reviewing the
Transaction Documents, Corporate Records, and Due Diligence Information, we have assumed the genuineness of all signatures and initials thereon, the genuineness of all notaries contained thereon, and the conformance of all copies with the original
thereof and originals to all copies thereof. We have further assumed that all certificates, documents and instruments dated prior to the date hereof remain accurate and correct on the date hereof. We have made no review of agreements, documents or
transactions described or referred to in the Corporate Records other than the Corporate Records, and we express no opinion as to the effect of such terms, conditions or provisions of such agreements, documents and transactions upon the Transaction
Documents or the matters discussed herein. We have further assumed that all Due Diligence Information is accurate, complete and authentic (including proper indexing and filing).
(c) None of the opinions below includes any implied opinion unless such implied opinion is both (i) essential to the legal
conclusion reached by the express opinions set forth below, and (ii) based upon prevailing norms and expectations among experienced lawyers in the State of Kansas, reasonable under the circumstances.
(d) We have assumed the issuance and performance of the Guarantee is not prohibited under any agreement or corporate document,
other than the Articles and Bylaws to which we opine in paragraph 4 below, that is binding upon the Guarantor.
(e) We assumed that no stop order suspending the effectiveness of the
Registration Statement or of any post-effective amendment to the Registration Statement is or will be in effect and no proceedings for such purpose or pursuant to Section 8 of the Securities Act have or will have been instituted or threatened
by the Commission against the Company or the Guarantor or related to the offer and sale contemplated in the Prospectus.
(f) To the extent governed by New York law, we have assumed the Guarantee will be duly executed, issued and delivered by the
Guarantor, all in accordance with the offer and sale contemplated by the Prospectus.
(g) We have assumed each of the Base
Indenture and the 2025 Notes Indenture (i) remains effective as of the date hereof and (ii) has been and remains duly qualified under the Trust Indenture Act of 1939, as amended.
(h) We express no opinion as to the statutes, administrative decisions, and rules and regulations of any county, municipal and
special political subdivisions.
Based on the foregoing, and qualified in the manner and to the extent set forth herein, we are of the
opinion that:
1. The Guarantor is a corporation existing and in good standing under the laws of the State of Kansas, with
the corporate power generally to conduct business and to own or lease properties.
2. The Supplemental Indenture has been
authorized by all necessary corporate action of the Guarantor.
3. The Supplemental Indenture has been duly executed and
delivered by the Guarantor
4. The Guarantee has been authorized by all necessary corporate action of the Guarantor.
5. The (i) execution, delivery and performance by the Guarantor of the Supplemental Indenture, (ii) performance by
the Guarantor of the Guarantee set forth in the 2025 Notes Indenture and (iii) compliance by the Guarantor with the terms and provisions of the Transaction Documents will not (Y) violate any Kansas law or regulation known to us to be
generally applicable to transactions of this type, or (Z) violate or result in a default under any of the terms and provisions of the Articles and Bylaws.
This opinion letter has been prepared for use in connection with the filing by the Company of a Current Report on Form 8-K on the date hereof,
which Form 8-K will be incorporated by reference into the Registration Statement and speaks as of the date hereof. We assume no obligation to advise you of any changes in the foregoing subsequent to such filing. We hereby consent to the filing of
this opinion with the Commission as Exhibit 5.2 to the above-described Form 8-K and to the reference to Polsinelli PC under the caption Legal Matters in the Prospectus. In giving such consent, we do not thereby admit that we are included
in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
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Very truly yours, |
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/s/ Polsinelli PC |
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Polsinelli PC |
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