UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[x] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1998
------------------------------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 1-4721
SPRINT CORPORATION
(Exact name of registrant as specified in its charter)
KANSAS 48-0457967
(State or other jurisdiction of incorporation (IRS Employer
or organization) Identification No.)
P.O. Box 11315, Kansas City, Missouri 64112
- --------------------------------------------------------------------------------
(Address of principal executive offices)
(913) 624-3000
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(Registrant's telephone number, including area code)
- --------------------------------------------------------------------------------
(Former name, former address and former fiscal year, if changed since
last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
COMMON SHARES OUTSTANDING AT SEPTEMBER 30, 1998:
COMMON STOCK 344,499,108
CLASS A COMMON STOCK 86,236,036
<PAGE>
SPRINT CORPORATION
FORM 10-Q FOR THE QUARTER ENDED SEPTEMBER 30, 1998
INDEX
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Page
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Part I - Financial Information
Item 1. Financial Statements
<S> <C>
Consolidated Balance Sheets 1
Consolidated Statements of Income 3
Consolidated Statements of Comprehensive Income 4
Consolidated Statements of Cash Flows 5
Consolidated Statement of Common Stock and Other Shareholders'
Equity 6
Condensed Notes to Consolidated Financial Statements 7
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations 11
Item 3. Quantitative and Qualitative Disclosures About Market Risk 26
Part II - Other Information
Item 1. Legal Proceedings 27
Item 2. Changes in Securities 27
Item 3. Defaults Upon Senior Securities 27
Item 4. Submission of Matters to a Vote of Security Holders 27
Item 5. Other Information 27
Item 6. Exhibits and Reports on Form 8-K 27
Signature 29
Exhibits
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<PAGE>
<TABLE>
<CAPTION>
PART I.
Item 1.
CONSOLIDATED BALANCE SHEETS SPRINT CORPORATION
(in millions, except per share data)
- -------------------------------------------------------------------------- -------------------- --- ----------------
September 30, December 31,
1998 1997
- -------------------------------------------------------------------------- -------------------- --- ----------------
(unaudited)
Assets
Current assets
<S> <C> <C>
Cash and equivalents $ 47.7 $ 101.7
Accounts receivable, net of allowance for doubtful accounts of $166.0
and $146.7 2,515.8 2,495.6
Inventories 349.9 352.0
Prepaid expenses 216.3 159.1
Notes and other receivables 542.5 464.6
Other 206.4 199.6
- -------------------------------------------------------------------------- ---- --------------- ---- ---------------
Total current assets 3,878.6 3,772.6
- -------------------------------------------------------------------------- ---- --------------- ---- ---------------
Investments in equity securities 420.2 303.0
- -------------------------------------------------------------------------- ---- --------------- ---- ---------------
Property, plant and equipment
Long distance division 9,133.0 8,245.5
Local division 14,817.2 14,011.5
Other 2,309.2 953.9
- -------------------------------------------------------------------------- ---- --------------- ---- ---------------
Total property, plant and equipment 26,259.4 23,210.9
Less accumulated depreciation 12,757.2 11,716.8
- -------------------------------------------------------------------------- ---- --------------- ---- ---------------
Net property, plant and equipment 13,502.2 11,494.1
Investments in and advances to affiliates 1,109.4 1,427.5
- -------------------------------------------------------------------------- ---- --------------- ---- ---------------
Other assets 1,543.4 1,187.6
- -------------------------------------------------------------------------- ---- --------------- ---- ---------------
Total $ 20,453.8 $ 18,184.8
---- --------------- ---- ---------------
See accompanying Condensed Notes to Consolidated Financial Statements.
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PART I.
Item 1.
CONSOLIDATED BALANCE SHEETS (continued) SPRINT CORPORATION
(in millions, except per share data)
- -------------------------------------------------------------------------- -------------------- --- ----------------
September 30, December 31,
1998 1997
- -------------------------------------------------------------------------- -------------------- --- ----------------
(unaudited)
Liabilities and Shareholders' Equity
Current liabilities
<S> <C> <C>
Current maturities of long-term debt $ 80.6 $ 131.0
Accounts payable 1,099.0 1,100.1
Accrued interconnection costs 564.7 672.7
Accrued taxes 399.2 270.7
Advance billings 213.3 202.9
Other 849.0 699.4
- -------------------------------------------------------------------------- ---- --------------- ---- ---------------
Total current liabilities 3,205.8 3,076.8
- -------------------------------------------------------------------------- ---- --------------- ---- ---------------
Construction obligations 429.0 -
- -------------------------------------------------------------------------- ---- --------------- ---- ---------------
Long-term debt 5,039.8 3,748.6
- -------------------------------------------------------------------------- ---- --------------- ---- ---------------
Deferred credits and other liabilities
Deferred income taxes and investment tax credits 1,029.2 1,016.5
Postretirement and other benefit obligations 1,067.4 947.4
Other 380.3 370.3
- -------------------------------------------------------------------------- ---- --------------- ---- ---------------
Total deferred credits and other liabilities 2,476.9 2,334.2
- -------------------------------------------------------------------------- ---- --------------- ---- ---------------
Common stock and other shareholders' equity
Common stock, par value $2.50 per share, 1,000.0 shares authorized,
350.3 shares issued, and 344.5 and 343.8 shares outstanding 875.7 875.7
Class A common stock, par value $2.50 per share, 500.0 shares
authorized, 86.2 shares issued and outstanding 215.6 215.6
Capital in excess of par or stated value 4,490.8 4,457.7
Retained earnings 4,012.7 3,693.1
Treasury stock, at cost, 5.8 and 6.5 shares (396.1) (292.9)
Accumulated other comprehensive income 114.3 107.9
Other (10.7) (31.9)
- -------------------------------------------------------------------------- ---- --------------- ---- ---------------
Total common stock and other shareholders' equity 9,302.3 9,025.2
- -------------------------------------------------------------------------- ---- --------------- ---- ---------------
Total $ 20,453.8 $ 18,184.8
---- --------------- ---- ---------------
See accompanying Condensed Notes to Consolidated Financial Statements.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PART I.
Item 1.
CONSOLIDATED STATEMENTS OF INCOME (Unaudited) SPRINT CORPORATION
(in millions, except per share data)
- -------------------------------------------- ---------------------------------- ----------------------------------
Quarter Ended Year-to-Date
September 30, September 30,
- -------------------------------------------- ---------------------------------- ----------------------------------
1998 1997 1998 1997
- -------------------------------------------- --- ------------- -- ------------- --- ------------- -- -------------
<S> <C> <C> <C> <C>
Net Operating Revenues $ 4,062.2 $ 3,778.9 $ 11,940.3 $ 11,024.9
Operating Expenses
Costs of services and products 1,915.5 1,879.2 5,691.3 5,523.7
Selling, general and administrative 979.6 823.9 2,802.0 2,395.1
Depreciation and amortization 493.0 435.1 1,429.1 1,265.2
- -------------------------------------------- --- ------------- -- ------------- --- ------------- -- -------------
Total operating expenses 3,388.1 3,138.2 9,922.4 9,184.0
- -------------------------------------------- --- ------------- -- ------------- --- ------------- -- -------------
Operating Income 674.1 640.7 2,017.9 1,840.9
Interest expense (57.6) (49.6) (185.6) (135.1)
Equity in loss of Global One (33.1) (41.0) (120.0) (88.3)
Equity in loss of Sprint PCS (250.5) (186.9) (686.5) (408.8)
Other income (expense), net 10.1 (2.9) 48.6 51.8
- -------------------------------------------- --- ------------- -- ------------- --- ------------- -- -------------
Income before income taxes and
extraordinary item 343.0 360.3 1,074.4 1,260.5
Income taxes (103.7) (148.6) (405.1) (502.9)
- -------------------------------------------- --- ------------- -- ------------- --- ------------- -- -------------
Income before extraordinary item 239.3 211.7 669.3 757.6
Extraordinary item, net - - (4.4) -
- -------------------------------------------- --- ------------- -- ------------- --- ------------- -- -------------
Net Income 239.3 211.7 664.9 757.6
Preferred stock dividends (0.3) (0.3) (0.8) (0.8)
- -------------------------------------------- --- ------------- -- ------------- --- ------------- -- -------------
Earnings applicable to common stock $ 239.0 $ 211.4 $ 664.1 $ 756.8
--- ------------- -- ------------- --- ------------- -- -------------
Diluted Earnings per Common Share
Income before extraordinary item $ 0.54 $ 0.49 $ 1.52 $ 1.74
Extraordinary item - - (0.01) -
- -------------------------------------------- --- ------------- -- ------------- --- ------------- -- -------------
Total $ 0.54 $ 0.49 $ 1.51 $ 1.74
--- ------------- -- ------------- --- ------------- -- -------------
Diluted weighted average common shares 439.5 435.8 438.7 436.1
--- ------------- -- ------------- --- ------------- -- -------------
Basic Earnings per Common Share
Income before extraordinary item $ 0.55 $ 0.49 $ 1.55 $ 1.76
Extraordinary item - - (0.01) -
- -------------------------------------------- --- ------------- -- ------------- --- ------------- -- -------------
Total $ 0.55 $ 0.49 $ 1.54 $ 1.76
--- ------------- -- ------------- --- ------------- -- -------------
Basic weighted average common shares 431.6 429.9 430.7 430.3
--- ------------- -- ------------- --- ------------- -- -------------
Dividends per Common Share $ 0.25 $ 0.25 $ 0.75 $ 0.75
--- ------------- -- ------------- --- ------------- -- -------------
See accompanying Condensed Notes to Consolidated Financial Statements.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PART I.
Item 1.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (Unaudited) SPRINT CORPORATION
(in millions)
- -------------------------------------------- ---------------------------------- ----------------------------------
Quarter Ended Year-to-Date
September 30, September 30,
- -------------------------------------------- ---------------------------------- ----------------------------------
1998 1997 1998 1997
- -------------------------------------------- ----------------- ---------------- ----------------- ----------------
<S> <C> <C> <C> <C>
Net Income $ 239.3 $ 211.7 $ 664.9 $ 757.6
- -------------------------------------------- --- ------------- -- ------------- --- ------------- -- -------------
Other Comprehensive Income
Unrealized holding gains
(losses)on securities (0.1) 2.6 13.3 7.0
Tax expense - (1.0) (4.8) (2.7)
- -------------------------------------------- --- ------------- -- ------------- --- ------------- -- -------------
Net unrealized holding gains (losses)
on securities (0.1) 1.6 8.5 4.3
Foreign currency translation adjustments - 2.0 (2.1) 7.8
- -------------------------------------------- --- ------------- -- ------------- --- ------------- -- -------------
Total other comprehensive income (0.1) 3.6 6.4 12.1
- -------------------------------------------- --- ------------- -- ------------- --- ------------- -- -------------
Comprehensive Income $ 239.2 $ 215.3 $ 671.3 $ 769.7
--- ------------- -- ------------- --- ------------- -- -------------
See accompanying Condensed Notes to Consolidated Financial Statements.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PART I.
Item 1.
CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited) SPRINT CORPORATION
(in millions)
- ------------------------------------------------------------------------------- --- ------------- -- -------------
Year-to-Date September 30, 1998 1997
- ------------------------------------------------------------------------------- --- ------------- -- -------------
Operating Activities
<S> <C> <C>
Net income $ 664.9 $ 757.6
Adjustments to reconcile net income to net cash provided by
operating activities:
Equity in net losses of affiliates 824.9 506.9
Depreciation and amortization 1,429.1 1,265.2
Deferred income taxes and investment tax credits 20.8 217.2
Changes in assets and liabilities:
Accounts receivable, net (20.2) (92.9)
Inventories and other current assets (28.0) (37.2)
Accounts payable and other current liabilities 126.9 (195.5)
Noncurrent assets and liabilities, net (69.0) (14.3)
Other, net 0.6 3.7
- ------------------------------------------------------------------------------- --- ------------- -- -------------
Net cash provided by operating activities 2,950.0 2,410.7
- ------------------------------------------------------------------------------- --- ------------- -- -------------
Investing Activities
Capital expenditures (2,992.1) (1,903.9)
PCS licenses purchased - (460.1)
Investments in and loans to affiliates, net (702.4) (508.5)
Paranet acquisition - (375.0)
Other, net (14.0) 33.8
- ------------------------------------------------------------------------------- --- ------------- -- -------------
Net cash used by investing activities (3,708.5) (3,213.7)
- ------------------------------------------------------------------------------- --- ------------- -- -------------
Financing Activities
Proceeds from long-term debt 945.6 -
Payments on long-term debt (246.7) (110.6)
Change in construction obligations 429.0 -
Net change in short-term borrowings - 194.7
Dividends paid (291.6) (274.5)
Treasury stock purchased (235.4) (128.8)
Other, net 103.6 81.0
- ------------------------------------------------------------------------------- --- ------------- -- -------------
Net cash provided (used) by financing activities 704.5 (238.2)
- ------------------------------------------------------------------------------- --- ------------- -- -------------
Decrease in Cash and Equivalents (54.0) (1,041.2)
Cash and Equivalents at Beginning of Period 101.7 1,150.6
- ------------------------------------------------------------------------------- --- ------------- -- -------------
Cash and Equivalents at End of Period $ 47.7 $ 109.4
--- ------------- -- -------------
See accompanying Condensed Notes to Consolidated Financial Statements.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PART I.
Item 1.
CONSOLIDATED STATEMENT OF COMMMON STOCK AND OTHER SHAREHOLDERS'EQUITY SPRINT CORPORATION
(Unaudited)
(in millions)
- --------------------------------------------------------------------------------------------------------------------
Year-to-Date September 30, 1998
- --------------------------------------------------------------------------------------------------------------------
Capital
in Accumulated
Class A Excess Other
Common Common of Par Retained Treasury Comprehensive
Stock Stock or Earnings Stock Income Other Total
Stated
Value
- --------------------------------------------------------------------------------------------------------------------
Beginning 1998
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance $ 875.7 $ 215.6 $4,457.7 $ 3,693.1 $ (292.9) $ 107.9 $ (31.9)$ 9,025.2
Net income - - - 664.9 - - - 664.9
Common stock
dividends - - - (258.6) - - - (258.6)
Class A common
stock dividends - - - (64.7) - - - (64.7)
Treasury stock
purchased - - - - (260.2) - - (260.2)
Treasury stock
issued - - 0.5 (12.8) 149.4 - - 137.1
Other, net - - 32.6 (9.2) 7.6 6.4 21.2 58.6
- --------------------------------------------------------------------------------------------------------------------
September 1998
Balance $ 875.7 $ 215.6 $4,490.8 $ 4,012.7 $ (396.1) $ 114.3 $ (10.7) $ 9,302.3
-------------------------------------------------------------------------------------------------
See accompanying Condensed Notes to Consolidated Financial Statements.
</TABLE>
<PAGE>
PART I.
Item 1.
CONDENSED NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS (Unaudited) SPRINT CORPORATION
The information in this Form 10-Q has been prepared according to Securities and
Exchange Commission (SEC) rules and regulations. In our opinion, the
consolidated interim financial statements reflect all adjustments (consisting
only of normal recurring accruals) needed to fairly present Sprint Corporation's
consolidated financial position, results of operations, cash flows and
comprehensive income.
Certain information and footnote disclosures normally included in consolidated
financial statements prepared according to generally accepted accounting
principles (GAAP) have been condensed or omitted. As a result, you should read
these financial statements along with Sprint Corporation's 1997 Annual Report on
Form 10-K. Operating results for the 1998 year-to-date period do not necessarily
represent the results that may be expected for the year ending December 31,
1998.
1. Basis of Consolidation
The consolidated financial statements include the accounts of Sprint Corporation
and its wholly owned and majority-owned subsidiaries. Investments in entities in
which Sprint has significant influence, but does not control, are accounted for
using the equity method (see Note 3).
The consolidated financial statements are prepared based on GAAP. These
principles require management to make estimates and assumptions that affect the
reported amounts of assets and liabilities, the disclosure of contingent assets
and liabilities, and the reported amounts of revenues and expenses. Actual
results could differ from those estimates.
Certain prior-year amounts have been reclassified to conform to the
current-period presentation. These reclassifications had no effect on the
results of operations or shareholders' equity as previously reported.
2. Restructuring and Recapitalization Plans
Sprint has entered into a restructuring agreement with Tele-Communications, Inc.
(TCI), Comcast Corporation (Comcast) and Cox Communications, Inc. (Cox)
(together, the Cable Parents) to restructure Sprint's wireless personal
communication services (PCS) operations (the PCS Restructuring). Sprint will
acquire the joint venture interests of TCI, Comcast and Cox in Sprint Spectrum
Holding Company, L.P. and MinorCo, L.P. (together, Sprint Spectrum Holdings) and
the joint venture interests of TCI and Cox in PhillieCo Partners I, L.P. and
PhillieCo Partners II, L.P. (together, PhillieCo). In exchange for these joint
venture interests, Sprint will issue the Cable Parents a newly created class of
Sprint common stock (the PCS Stock). The PCS Stock is intended to reflect
separately the performance of these joint ventures and the domestic PCS
operations of Sprint's wholly-owned subsidiaries, SprintCom, Inc. and SprintCom
Equipment Company, L.P. (together, SprintCom). These operations, which after the
PCS Restructuring will be 100% owned by Sprint (subject to a 40.8% minority
interest in the entity holding the PCS license for and conducting operations in
the Los Angeles/San Diego/Las Vegas area), will be referred to as the PCS Group.
The FON Stock, which will be created in a tax-free recapitalization, is intended
to reflect the performance of all of Sprint's other operations, including its
long distance and local divisions as well as the product distribution and
directory publishing businesses, non-PCS emerging businesses and its interest in
Global One. These operations will be referred to as the FON Group.
These transactions are subject to shareholder approval. The shareholder meeting
to vote on the proposal has been scheduled for November 13, 1998. If shareholder
approval is obtained, the PCS Restructuring is expected to close in the 1998
fourth quarter.
<PAGE>
3. Investments
Sprint is a 40% partner in Sprint Spectrum Holdings and a 47.1% partner in
PhillieCo (together, Sprint PCS). Sprint PCS is building the nation's first
single-technology, state-of-the-art wireless network to provide PCS across the
United States.
Sprint is also a partner in Global One, a joint venture with Deutsche Telekom AG
(DT) and France Telecom S.A. (FT). The joint venture was formed to provide
seamless telecommunications services to business, residential and carrier
markets worldwide. Sprint is a one-third partner in Global One's operating group
serving Europe (excluding France and Germany) and a 50% partner in Global One's
operating group for the worldwide activities outside the United States and
Europe.
Combined, summarized financial information (100% basis) of all entities
accounted for using the equity method was as follows:
<TABLE>
<CAPTION>
Quarter Ended Year-to-Date
September 30, September 30,
---------------------------------- ----------------------------------
1998 1997 1998 1997
- -------------------------------------------- --- ------------- -- ------------- --- ------------- -- -------------
(in millions)
Results of operations
<S> <C> <C> <C> <C>
Net operating revenues $ 948.5 $ 657.8 $ 2,468.6 $ 1,645.9
--- ------------- -- ------------- --- ------------- -- -------------
Net operating loss $ (672.3) $ (607.3) $ (1,831.7) $ (1,342.1)
--- ------------- -- ------------- --- ------------- -- -------------
Net loss $ (810.6) $ (633.1) $ (2,187.4) $ (1,515.9)
--- ------------- -- ------------- --- ------------- -- -------------
Sprint's net losses in affiliates $ (301.3) $ (226.7) $ (826.1) $ (490.7)
--- ------------- -- ------------- --- ------------- -- -------------
</TABLE>
4. Income Taxes
The differences that caused Sprint's effective income tax rates to vary from the
35% statutory federal rate were as follows:
<TABLE>
<CAPTION>
Year-to-Date
September 30,
----------------------------------
1998 1997
- ------------------------------------------------------------------------------- --- ------------- -- -------------
(in millions)
<S> <C> <C>
Income tax expense at the statutory rate $ 376.0 $ 441.2
Less investment tax credits included in income 1.0 2.9
--- ------------- -- -------------
Expected federal income taxes after investment tax credits 375.0 438.3
Effect of:
State income taxes, net of federal income tax effect 27.5 45.9
Equity in losses of foreign joint ventures 10.5 24.2
Other, net (7.9) (5.5)
- ------------------------------------------------------------------------------- --- ------------- -- -------------
Income tax expense, including investment tax credits $ 405.1 $ 502.9
--- ------------- -- -------------
Effective income tax rate 37.7% 39.9%
--- ------------- -- -------------
</TABLE>
5. Borrowings
During the first nine months of 1998, Sprint increased its short-term borrowings
by $946 million. The weighted average interest rate of Sprint's outstanding
short-term borrowings at the end of September 1998 was 5.8%. These borrowings,
however, have been classified as long-term debt because of Sprint's intent and
ability, through unused credit facilities, to refinance them on a long-term
basis. Sprint also increased its construction obligations by $429 million since
year-end 1997.
<PAGE>
In August 1998, Sprint entered into new revolving credit facilities with
syndicates of banks totaling $5.0 billion. These facilities support Sprint's
commercial paper operations and replace its previous $1.5 billion revolving
credit facility. At September 30, 1998, $3.6 billion was available under these
facilities.
In October 1998, Sprint filed a shelf registration statement with the SEC for
$8.0 billion of debt securities. This replaced $1.0 billion of Sprint's previous
shelf registration statements, which had totaled $1.1 billion. Sprint currently
expects to offer up to $3 billion under the new shelf at approximately the same
time as the PCS Restructuring.
6. Litigation, Claims and Assessments
In December 1996, an arbitration panel entered a $61 million award in favor of
Network 2000 Communications Corporation on its breach of contract claim against
Sprint. The arbitrators directed Sprint to pay one-half of this award to Network
2000. The remainder was directed to be paid to the Missouri state court in which
a proposed class action by Network 2000's independent marketing representatives
against Network 2000 and Sprint is pending.
In June 1997, Sprint recorded additional expense of $20 million. This charge
related to the settlement of both the class action lawsuit against Sprint and
Network 2000 and the related claims of Network 2000 against Sprint. In June
1998, the court approved the class action settlement; however, a small number of
potential class members chose not to be a part of that settlement and have filed
a separate lawsuit asserting their individual claims. Some potential class
members have indicated that they intend to appeal the approval of the
settlement, which would delay final approval.
Other suits arising in the ordinary course of business are pending against
Sprint. We cannot predict the final outcome of these actions but we believe they
will not be material to Sprint's consolidated financial statements.
7. Supplemental Cash Flow Information
<TABLE>
<CAPTION>
Year-to-Date
September 30,
-- -------------------------------
1998 1997
- -------------------------------------------------------------------------------- -- ------------- -- -------------
(in millions)
Cash paid for:
<S> <C> <C>
Interest (net of capitalized interest) $ 174.1 $ 133.2
-- ------------- -- -------------
Income taxes $ 279.1 $ 288.5
-- ------------- -- -------------
Noncash activity:
Capital lease obligations $ 438.1 $ 30.1
-- ------------- -- -------------
Common stock issued under Sprint's Employee Stock Purchase Plan $ 73.9 $ -
-- ------------- -- -------------
</TABLE>
The capital lease activity in 1998 reflects the buildout of the SprintCom PCS
markets.
8. Earnings per Share
Dilutive securities, such as options, included in the diluted weighted average
common shares calculation totaled 7.9 million shares for the 1998 third quarter
and 5.9 million shares for the 1997 third quarter. Dilutive securities totaled
8.0 million shares for the 1998 year-to-date period and 5.8 million shares for
the same 1997 period.
9. Comprehensive Income
In 1998, Sprint adopted Statement of Financial Accounting Standards 130,
"Reporting Comprehensive Income." The statement sets standards for reporting
comprehensive income and its components. Comprehensive income includes all
changes in equity during a period, except those due to owner investments and
distributions. It includes items such as foreign currency translation
adjustments, and unrealized gains and losses on available-for-sale securities.
This standard does not change the display or components of present-day net
income; rather, comprehensive income is displayed as a separate statement,
Consolidated Statements of Comprehensive Income, and as an additional item in
the Consolidated Balance Sheets and the Consolidated Statement of Common Stock
and Other Shareholders' Equity.
<PAGE>
10. Recently Issued Accounting Pronouncement
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards 133, "Accounting for Derivative Instruments and
Hedging Activities." This standard requires all derivatives to be recorded on
the balance sheet as either assets or liabilities and be measured at fair value.
Gains or losses from changes in the derivative values are to be accounted for
based on how the derivative was used and whether it qualifies for hedge
accounting. When adopted in January 2000, this statement is not expected to have
a material impact on Sprint's consolidated financial statements.
11. Subsequent Events
In October 1998, Sprint's Board of Directors declared common and Class A common
stock dividends of $0.25 per share payable December 28, 1998.
In November 1998, Sprint sold approximately 80,000 residential and business
access lines in rural Illinois for cash, realizing an after-tax gain of
approximately $95 million.
<PAGE>
PART I.
Item 2.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF SPRINT CORPORATION
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
General
Sprint Corporation, with its subsidiaries, includes certain estimates,
projections and other forward-looking statements in its reports, in
presentations to analysts and others, and in other publicly available material.
Future performance cannot be ensured. Actual results may differ materially from
those in forward-looking statements. Factors that could cause actual results to
differ materially from estimates or projections contained in the forward-looking
statements include:
- the effects of vigorous competition in the markets in which Sprint
operates;
- the cost and business risks associated with entering and expanding new
markets necessary to provide seamless services and to provide new
services;
- the uncertainties related to Sprint's investments in Sprint Spectrum
Holding Company, L.P. and MinorCo, L.P. (together, Sprint Spectrum
Holdings), PhillieCo Partners I, L.P. and PhillieCo Partners II, L.P.
(together, PhillieCo), Global One and other joint ventures;
- the impact of any unusual items resulting from ongoing evaluations of
Sprint's business strategies;
- requirements imposed on Sprint or latitude allowed its competitors
by the Federal Communications Commission (FCC) or state regulatory
commissions under the Telecommunications Act of 1996 (Telecom Act);
- unexpected results of litigation filed against Sprint;
- the impact of the Year 2000 issue and any related noncompliance; and
- the possibility of one or more of the markets in which Sprint competes
being impacted by changes in political, economic or other factors such
as monetary policy, legal and regulatory changes or other external
factors over which Sprint has no control.
The words "estimate", "project", "intend", "expect", "believe" and similar
expressions are intended to identify forward-looking statements. These
forward-looking statements are found at various places throughout Management's
Discussion and Analysis of Financial Condition and Results of Operations. You
should not place undue reliance on these forward-looking statements, which speak
only as of the date of this document. Sprint undertakes no obligation to
publicly release any revisions to these forward-looking statements to reflect
events or circumstances after the date of this document or to reflect the
occurrence of unanticipated events. Moreover, we may from time to time make
forward-looking statements about the matters described in this document or other
matters concerning Sprint.
Regulatory Developments
In September 1998, the U.S. Court of Appeals voted to uphold the provisions of
the Telecom Act line-of-business restrictions on the Regional Bell Operating
Companies (RBOCs). Previously, a federal district court in Wichita Falls, Texas,
ruled that these restrictions unlawfully singled out the RBOCs for punishment.
Certain of the RBOCs have filed a petition asking the U.S. Supreme Court to
consider whether the restrictions violate the U.S. Constitution.
Strategic Initiatives
Restructuring and Recapitalization Plans
Sprint has entered into a restructuring agreement with Tele-Communications, Inc.
(TCI), Comcast Corporation (Comcast) and Cox Communications, Inc. (Cox)
(together, the Cable Parents) to restructure Sprint's wireless personal
communication services (PCS) operations (the PCS Restructuring). Sprint will
acquire the joint venture interests of TCI, Comcast and Cox in Sprint Spectrum
Holdings and the joint venture interests of TCI and Cox (together, the PhillieCo
Partners) in PhillieCo. In exchange for these joint venture interests, Sprint
will issue to the Cable Parents a newly created class of Sprint common stock
(the PCS Stock). The PCS Stock is intended to reflect separately the performance
of these joint ventures and the domestic PCS operations of Sprint's wholly-owned
subsidiaries, SprintCom, Inc. and SprintCom Equipment Company, L.P. (together,
SprintCom). These operations will be referred to as the PCS Group.
<PAGE>
The FON Stock, which will be created in a tax-free recapitalization, is intended
to reflect separately the performance of all of Sprint's other operations,
including its long distance and local divisions as well as the product
distribution and directory publishing businesses, non-PCS emerging businesses
and its interest in Global One. These operations will be referred to as the FON
Group.
These transactions are subject to shareholder approval. The shareholders meeting
to vote on the proposal has been scheduled for November 13, 1998. If shareholder
approval is obtained, the PCS Restructuring is expected to close in the 1998
fourth quarter.
Integrated On-demand Network
In June 1998, Sprint announced its Integrated On-demand Network (ION), which is
expected to extend its existing advanced network capabilities to customer
premises and enable Sprint to meet two business needs: (a) to provide the
network infrastructure to meet customers' ever-increasing demands for data,
Internet, and video use and (b) to provide the foundation for Sprint to provide
competitive local service. Sprint believes that this integrated services
capability will generate increased demand for its products and services, while
at the same time reducing the costs to provide those services. The incremental
capital expenditures required to develop this advanced functionality are
projected to approximate $400 million through 1999. Sprint will be assisted in
this development effort by Cisco Systems and Bellcore. These companies will be
contributing their expertise and assisting in the funding of these efforts. In
addition to the capital for development, the initial deployment of ION is
expected to require approximately $400 million for network upgrades through
1999.
ION intends to rely substantially on the transmission infrastructure of the long
distance division and to a lesser extent on the transmission infrastructure of
the local division. Where Sprint facilities currently do not exist, we will
evaluate whether facilities should be built, leased or acquired. Because a
significant amount of future investment will be related to specific customer
contracts, we expect to manage our investment in ION to be consistent with
customer demand.
Core Businesses
Long Distance Division
The long distance division is the nation's third-largest long distance telephone
company. It operates a nationwide, all-digital long distance communications
network using state-of-the-art fiber-optic and electronic technology. The
division provides domestic and international voice, video and data
communications services.
Local Division
The local division consists of regulated local telephone companies serving more
than 7.5 million access lines in 18 states. It provides local telephone
services, access by telephone customers and other carriers to Sprint's local
network, sales of telecommunications equipment, and long distance services
within certain regional calling areas, or local access transport areas (LATAs).
In early November 1998, Sprint sold its remaining 80,000 residential and
business access lines in Illinois.
Product Distribution and Directory Publishing Businesses
The product distribution business provides wholesale distribution services of
telecommunications products. The directory publishing business publishes and
markets white and yellow page telephone directories.
Emerging Businesses
Emerging businesses includes activities to enter new local markets, Sprint
Paranet, SprintCom, and Sprint International. It also included the operating
results of Sprint's consumer Internet access services prior to the closing of
the Earthlink transaction (see "Segmental Results of Operations - Emerging
Businesses" for more information).
<PAGE>
Strategic Alliances
Global One
Sprint is a partner in Global One, a joint venture with Deutsche Telekom AG (DT)
and France Telecom S.A. (FT). The venture was formed to provide seamless
telecommunications services to business, residential and carrier markets
worldwide. Sprint is a one-third partner in Global One's operating group serving
Europe (excluding France and Germany) and a 50% partner in Global One's
operating group for the worldwide activities outside the United States and
Europe.
DT and FT each own 10% of Sprint's voting equity through Sprint's Class A common
stock. As Class A common shareholders, they have the right in most cases to pro
rata representation on Sprint's Board of Directors. They may also purchase Class
A common shares from Sprint to maintain their 10% ownership.
Sprint PCS
Sprint is a 40% partner in Sprint Spectrum Holdings and a 47.1% partner in
PhillieCo (together, Sprint PCS). Sprint PCS is building the nation's first
single-technology, all-digital, state-of-the-art wireless network to provide PCS
across the United States. PCS technology is digital and has sound quality
superior to existing cellular technology and is less susceptible to interference
and eavesdropping. PCS also offers features such as voice mail, Caller ID, Call
Waiting and Three-way Calling. Sprint PCS currently offers service to more than
160 metropolitan markets with 117 million people.
As part of an overall strategy to increase PCS coverage, Sprint directly
acquired the rights to PCS licenses covering 139 markets across the United
States. These licenses reach a total population of 70 million people. Together,
Sprint PCS and Sprint have licensed PCS coverage of nearly 260 million people
across the United States, Puerto Rico and the U.S. Virgin Islands.
In May 1998, Sprint and the Cable Parents agreed to restructure the ownership
interests of Sprint PCS. See "Strategic Initiatives - Restructuring and
Recapitalization Plans" for more information.
Results Of Operations
Consolidated
Total net operating revenues for the 1998 third quarter increased 7% to $4.1
billion from $3.8 billion for the same period a year ago. Net income was $239
million ($0.54 per diluted share) versus $212 million ($0.49 per diluted share)
for the 1997 quarter.
Net operating revenues for the first nine months of 1998 increased 8% to $11.9
billion from $11.0 billion for the same 1997 period. Net income was $665 million
($1.51 per diluted share) versus $758 million ($1.74 per diluted share) in 1997.
Net income for 1998 includes a $0.01 per share extraordinary charge related to
the early extinguishment of debt, while 1997 includes a $0.03 per share charge
related to litigation in the long distance division.
Core Businesses
Sprint's core businesses showed improved 1998 third quarter net operating
revenues and operating income versus the same 1997 period. Core businesses
exclude results from joint ventures and emerging businesses. Third quarter 1998
long distance calling volumes increased 17% and year-to-date calling volumes
increased 13% from the same 1997 periods. Local division access lines increased
3.2% during the past 12 months. Excluding the sale of exchanges in the 1997
fourth quarter, access line growth would have been 5.2%.
<PAGE>
Segmental Results of Operations
Long Distance Division
<TABLE>
<CAPTION>
Selected Operating Results
----------------------------------------------------------------------
Quarter Ended
September 30, Variance
---------------------------------- -------------------------------
1998 1997 $ %
- -------------------------------------------- ----------------- ---------------- --- ------------- -----------------
(in millions)
<S> <C> <C> <C> <C>
Net operating revenues $ 2,458.4 $ 2,251.7 $ 206.7 9.2%
Operating expenses
Interconnection 951.3 959.8 (8.5) (0.9)%
Operations 345.2 316.3 28.9 9.1%
Selling, general and administrative 582.6 500.4 82.2 16.4%
Depreciation and amortization 221.8 187.1 34.7 18.5%
- -------------------------------------------- --- ------------- -- ------------- --- -------------
Total operating expenses 2,100.9 1,963.6 137.3 7.0%
- -------------------------------------------- --- ------------- -- ------------- --- -------------
Operating income $ 357.5 $ 288.1 $ 69.4 24.1%
--- ------------- -- ------------- --- -------------
Operating margin 14.5% 12.8%
--- ------------- -- -------------
</TABLE>
<TABLE>
<CAPTION>
Selected Operating Results
----------------------------------------------------------------------
Year-to-Date
September 30, Variance
---------------------------------- -------------------------------
1998 1997 $ %
- -------------------------------------------- ----------------- ---------------- --- ------------- -----------------
(in millions)
<S> <C> <C> <C> <C>
Net operating revenues $ 7,207.7 $ 6,642.7 $ 565.0 8.5%
Operating expenses
Interconnection 2,872.4 2,966.8 (94.4) (3.2)%
Operations 1,001.8 909.2 92.6 10.2%
Selling, general and administrative 1,684.3 1,464.5 219.8 15.0%
Depreciation and amortization 628.8 520.9 107.9 20.7%
- -------------------------------------------- --- ------------- -- ------------- --- -------------
Total operating expenses 6,187.3 5,861.4 325.9 5.6%
- -------------------------------------------- --- ------------- -- ------------- --- -------------
Operating income $ 1,020.4 $ 781.3 (1) $ 239.1 30.6%
--- ------------- -- ------------- --- -------------
Operating margin 14.2% 11.8%(1)
--- ------------- -- -------------
(1)Excluding a $20 million charge related to litigation, 1997 operating income
would have been $801 million. The operating margin would have been 12.1%.
</TABLE>
Net Operating Revenues
All major market segments - residential, business and wholesale - contributed to
the increase in net operating revenues in both third quarter and year-to-date
1998 from the same 1997 periods. The increases mainly reflect strong data
services revenue growth and strong minute growth, partly offset by a more
competitive pricing environment and a change in the mix of products sold.
<PAGE>
Business and Data Market - Business market revenues increased 18% in the 1998
third quarter and 15% for the 1998 year-to-date period from the same 1997
periods. Data services, which includes sales of capacity on Sprint's network to
Internet service providers, showed strong growth because of continued demand and
expanded service offerings. The increases also reflect strong calling volumes
for WATS and toll-free calls made within the United States. Growth in the small
business market benefited from the Sprint International Business Calling Plan,
which was launched late in the 1998 second quarter. This plan provides flat
international rates, 24 hours a day, seven days a week to more than 200
countries.
Residential Market - Residential market revenues increased 7% in the 1998 third
quarter and 6% in the 1998 year-to-date period from the same 1997 periods. These
increases reflect strong revenue and volume growth from residential long
distance calls. Growth was also enhanced by the Sprint Sense Anytime "10 by 24"
product - dime-a-minute calls, 24 hours a day - which generated increased sales
in the 1998 quarter versus a year ago. Other factors included increased
international and prepaid card revenues as well as calling card calls made by
customers of local telephone companies. Through various agreements Sprint has
with local telephone companies, their customers use the Sprint network when
making long distance calls.
Wholesale Market - Wholesale market revenues increased 1% in the 1998 third
quarter and 4% in the 1998 year-to-date period from the same 1997 periods. This
reflects strong minute growth mainly from increased WATS calls, partly offset by
a change in international mix to lower yielding but higher margin countries.
Interconnection Costs
Interconnection costs consist of amounts paid to local telephone companies,
other domestic service providers, and foreign telephone companies to complete
calls made by the division's domestic customers. These costs decreased 1% in the
1998 third quarter and 3% in the 1998 year-to-date period from the same 1997
periods. This reflects lower unit costs for both domestic and international
access to others' networks, partly offset by strong minute growth. Domestic unit
costs are expected to continue trending downward due to additional FCC-mandated
access rate reductions. Access rate reductions impacting the periods reported
took effect in July 1997 and January and July 1998. Lower international unit
costs reflect continued competition in the market. Sprint expects government
deregulation and competitive pressures to add to the continued trend of
declining unit costs for international interconnection. Interconnection costs
were 38.7% of net operating revenues in the 1998 third quarter and 39.9% in the
1998 year-to-date period versus 42.6% and 44.7% for the same periods a year ago.
Operations Expense
Operations expense includes costs to operate and maintain the long distance
network and costs of equipment sales. It also includes costs to provide
operator, public payphone and video teleconferencing services, as well as
telecommunications services for the hearing impaired. Operations expense
increased 9% in the 1998 third quarter and 10% in the year-to-date period from
the same 1997 periods. This reflects increased costs related to data services
growth as well as increases in the volume of network equipment operating leases.
Operations expense for 1998 also includes costs related to Sprint's efforts to
achieve Year 2000 compliance for its telecommunications network and operating
systems. In addition, FCC-mandated payments to public payphone providers
increased in the 1997 second quarter. As a result, the 1997 year-to-date period
reflects six months of this increase compared with nine months for the same 1998
period. Operations expense was 14.0% of net operating revenues in the 1998 third
quarter and 13.9% in the 1998 year-to-date period versus 14.0% and 13.7% for the
same periods a year ago.
Selling, General and Administrative Expense
Selling, general and administrative (SG&A) expense increased 16% in the 1998
third quarter and 15% in the 1998 year-to-date period from the same 1997
periods. These increases reflect the overall growth of the division's operating
activities as well as increased marketing activities and promotions to support
products and services. SG&A for 1998 also includes costs related to Sprint's
efforts to achieve Year 2000 compliance for computer systems and other items
such as billing, customer service and other administrative systems. SG&A expense
was 23.7% of net operating revenues in the 1998 third quarter and 23.3% in the
1998 year-to-date period versus 22.3% and 22.0% for the same periods a year ago.
Depreciation and Amortization Expense
Depreciation and amortization expense increased 19% in the 1998 third quarter
and 21% in the 1998 year-to-date period from the same 1997 periods. These
increases were generally due to an increased asset base and shorter average
depreciable lives. Capital expenditures in both years were incurred mainly to
enhance network reliability, meet increased demand for data-related services and
upgrade capabilities for providing new products and services. Depreciation and
amortization expense was 9.1% of net operating revenues in the 1998 third
quarter and 8.7% in the 1998 year-to-date period versus 8.3% and 7.8% for the
same periods a year ago.
<PAGE>
Local Division
<TABLE>
<CAPTION>
Selected Operating Results
----------------------------------------------------------------------
Quarter Ended
September 30, Variance
---------------------------------- ------------------------------
1998 1997 $ %
- -------------------------------------------- ----------------- ---------------- --- ------------- ----------------
(in millions)
<S> <C> <C> <C> <C>
Net operating revenues $ 1,364.4 $ 1,328.6 $ 35.8 2.7%
Operating expenses
Costs of services and products 467.9 480.6 (12.7) (2.6)%
Selling, general and administrative 295.3 269.1 26.2 9.7%
Depreciation and amortization 240.7 231.2 9.5 4.1%
- -------------------------------------------- --- ------------- -- ------------- --- -------------
Total operating expenses 1,003.9 980.9 23.0 2.3%
- -------------------------------------------- --- ------------- -- ------------- --- -------------
Operating income $ 360.5 $ 347.7 $ 12.8 3.7%
--- ------------- -- ------------- --- -------------
Operating margin 26.4% 26.2%
--- ------------- -- -------------
</TABLE>
<TABLE>
<CAPTION>
Selected Operating Results
----------------------------------------------------------------------
Year-to-Date
September 30, Variance
---------------------------------- ------------------------------
1998 1997 $ %
- -------------------------------------------- ----------------- ---------------- --- ------------- ----------------
(in millions)
<S> <C> <C> <C> <C>
Net operating revenues $ 4,032.3 $ 3,969.7 $ 62.6 1.6%
Operating expenses
Costs of services and products 1,384.0 1,392.0 (8.0) (0.6)%
Selling, general and administrative 859.4 794.8 64.6 8.1%
Depreciation and amortization 708.4 697.7 10.7 1.5%
- -------------------------------------------- --- ------------- -- ------------- --- -------------
Total operating expenses 2,951.8 2,884.5 67.3 2.3%
- -------------------------------------------- --- ------------- -- ------------- --- -------------
Operating income $ 1,080.5 $ 1,085.2 $ (4.7) (0.4)%
--- ------------- -- ------------- --- -------------
Operating margin 26.8% 27.3%
--- ------------- -- -------------
</TABLE>
Beginning in July 1997, Sprint changed its transfer pricing for certain
transactions between affiliates to more accurately reflect market pricing. The
main effect of this change was to reduce "Net Operating Revenues - Other
Revenues." While the third quarter of both 1998 and 1997 are on a comparable
basis, the following discussion of local division year-to-date operating results
assumes these changes occurred at the beginning of 1997. Based on this
assumption, the 1997 year-to-date operating margin would have been 26.3%.
Net Operating Revenues
Net operating revenues increased 3% in both the 1998 third quarter and
year-to-date periods from the same 1997 periods. These increases mainly reflect
customer access line growth, and increased sales of equipment and network-based
services such as Caller ID and Call Waiting.
In November 1997, Sprint sold approximately 139,000 residential and business
access lines in a small area of Northwest Chicago and nearby suburbs. Excluding
the sale of these exchanges, net operating revenues would have increased 5% in
both the 1998 third quarter and year-to-date periods, and access line growth
would have been 5.2% during the past 12 months.
<PAGE>
Local Service Revenues
Local service revenues, derived from local exchange services, increased 5% in
both the 1998 third quarter and year-to-date periods (8% excluding the sale of
exchanges) from the same 1997 periods. Local service revenues increased because
of access line growth and continued demand for network-based services. These
increases also reflect increased sales of private line services and maintenance
of customer wiring and equipment.
Network Access Revenues
Network access revenues, derived from long distance companies using Sprint's
local network to complete calls, increased 1% (3% excluding the sale of
exchanges) for both the 1998 third quarter and year-to-date periods from the
same 1997 periods. These revenues reflect a 7% (9% excluding the sale of
exchanges) increase in minutes of use for the 1998 third quarter and a 6% (8%
excluding the sale of exchanges) increase for the 1998 year-to-date period,
partly offset by FCC-mandated access rate reductions. Access rate reductions
impacting the periods reported took effect in July 1997 and January and July
1998.
Toll Service Revenues
Toll service revenues are mainly derived from providing long distance services
within specified regional calling areas, or LATAs, that are beyond the local
calling area. These revenues decreased 28% (27% excluding the sale of exchanges)
for both the 1998 third quarter and year-to-date periods from the same 1997
periods, reflecting extended local calling areas and increased competition in
the intrastate long distance market. The losses were, in part, offset by
increases in local service revenues since local calling areas have been expanded
and increases in network access revenues paid by competitors.
Other Revenues
Other revenues include telecommunications equipment sales, directory sales and
listing services, payphone revenues, billing and collection services and
services to locate underground utility lines. It also includes commission income
from the sale of long distance services on behalf of Sprint's long distance
division. Other revenues increased 13% in the 1998 third quarter and 17% in the
1998 year-to-date period from the same 1997 periods. These increases were due to
increased equipment sales of business systems and data networks, growth in
payphone revenues and revenues from locating underground utility lines, as well
as increased commissions from the sale of Sprint's long distance services.
Costs of Services and Products
Costs of services and products includes costs to operate and maintain the local
network and costs of equipment sales. These expenses decreased 3% (1% excluding
the sale of exchanges) in the third quarter 1998 and decreased less than 1%
(increased 1% excluding the sale of exchanges) for the 1998 year-to-date period
from the same periods a year ago. This reflects continued cost control, while
still supporting customer access line growth and increased equipment sales.
Costs of services and products for 1998 also includes costs related to Sprint's
efforts to achieve Year 2000 compliance for its telecommunications network and
operating systems. Costs of services and products was 34.3% of net operating
revenues in both the 1998 third quarter and year-to-date periods versus 36.2%
and 35.5% for the same periods a year ago.
Selling, General and Administrative Expense
SG&A expense increased 10% (12% excluding the sale of exchanges) in the 1998
third quarter and 8% (10% excluding the sale of exchanges) in the 1998
year-to-date period from the same periods a year ago. These increases were
mainly due to increased customer service costs related to access line growth and
marketing costs to promote new products and services. SG&A for 1998 also
includes costs related to Sprint's efforts to achieve Year 2000 compliance for
computer systems and other items such as billing, customer service, and other
administrative systems. SG&A expense was 21.6% of net operating revenues in the
1998 third quarter and 21.3% in the 1998 year-to-date period versus 20.2% and
20.3% for the same periods a year ago.
<PAGE>
Depreciation and Amortization Expense
Depreciation and amortization expense increased 4% (also 4% excluding the sale
of exchanges) in the 1998 third quarter and 2% (also 2% excluding the sale of
exchanges) in the 1998 year-to-date period. This was due to capital
expenditures, partly offset by lower depreciation rates resulting from longer
asset lives. Depreciation and amortization expense was 17.7% of net operating
revenues in the 1998 third quarter and 17.6% in the 1998 year-to-date period
versus 17.4% and 17.9% for the same periods a year ago.
Other
In November 1998, Sprint sold approximately 80,000 residential and business
access lines in rural Illinois. These access lines generated year-to-date
revenues of $38 million through September 1998.
Product Distribution and Directory Publishing Businesses
<TABLE>
<CAPTION>
Selected Operating Results
----------------------------------------------------------------------
Quarter Ended
September 30, Variance
---------------------------------- ------------------------------
1998 1997 $ %
- -------------------------------------------- ----------------- ---------------- --- ------------- ----------------
(in millions)
<S> <C> <C> <C> <C>
Net operating revenues $ 436.2 $ 403.7 $ 32.5 8.1%
Operating expenses
Costs of services and products 347.2 314.9 32.3 10.3%
Selling, general and administrative 28.8 24.0 4.8 20.0%
Depreciation and amortization 4.1 2.2 1.9 86.4%
- -------------------------------------------- --- ------------- -- ------------- --- -------------
Total operating expenses 380.1 341.1 39.0 11.4%
- -------------------------------------------- --- ------------- -- ------------- --- -------------
Operating income $ 56.1 $ 62.6 $ (6.5) (10.4)%
--- ------------- -- ------------- --- -------------
Operating margin 12.9% 15.5%
--- ------------- -- -------------
</TABLE>
<TABLE>
<CAPTION>
Selected Operating Results
----------------------------------------------------------------------
Year-to-Date
September 30, Variance
---------------------------------- ------------------------------
1998 1997 $ %
- -------------------------------------------- ----------------- ---------------- --- ------------- ----------------
(in millions)
<S> <C> <C> <C> <C>
Net operating revenues $ 1,272.5 $ 1,077.8 $ 194.7 18.1%
Operating expenses
Costs of services and products 1,006.5 881.7 124.8 14.2%
Selling, general and administrative 81.2 68.8 12.4 18.0%
Depreciation and amortization 8.7 6.0 2.7 45.0%
- -------------------------------------------- --- ------------- -- ------------- --- -------------
Total operating expenses 1,096.4 956.5 139.9 14.6%
- -------------------------------------------- --- ------------- -- ------------- --- -------------
Operating income $ 176.1 $ 121.3 $ 54.8 45.2%
--- ------------- -- ------------- --- -------------
Operating margin 13.8% 11.3%
--- ------------- -- -------------
</TABLE>
<PAGE>
Beginning in July 1997, Sprint changed its transfer pricing for certain
transactions between affiliates to more accurately reflect market pricing. While
the third quarter of both 1998 and 1997 are on a comparable basis, the following
discussion of year-to-date operating results assumes these changes occurred at
the beginning of 1997. Based on this assumption, the 1997 year-to-date operating
margin would have been 15.8%.
Net operating revenues increased 8% in the 1998 third quarter and 19% in the
1998 year-to-date period from the same periods a year ago. Nonaffiliated
revenues, which account for roughly 60% of this segment's revenues, increased
16% from the 1997 third quarter and 11% from the 1997 year-to-date period. Sales
to affiliates decreased 2% in the 1998 third quarter compared with the same 1997
period, while 1998 year-to-date affiliated revenues increased 32% from the same
period a year ago.
Costs of services and products increased 10% in the 1998 third quarter and 22%
in the 1998 year-to-date period from the same 1997 periods reflecting increased
sales.
SG&A expense increased 20% in the 1998 third quarter and 18% in the 1998
year-to-date period from the same periods a year ago. These increases reflect
Sprint's July 1998 acquisition of a sales force from another directory sales
company. Results for 1998 reflect the amortization of goodwill and noncompete
agreements related to that purchase.
Emerging Businesses
<TABLE>
<CAPTION>
Selected Operating Results
---------------------------------------------------------------------
Quarter Ended Year-to-Date
September 30, September 30,
---------------------------------- ----------------------------------
1998 1997 1998 1997
- -------------------------------------------- ----------------- ---------------- ----------------- ----------------
(in millions)
<S> <C> <C> <C> <C>
Net operating revenues $ 44.5 $ 6.4 $ 138.0 $ 14.3
--- ------------- -- ------------- --- ------------- -- -------------
Operating loss $ (90.5) $ (48.7) $ (228.9) $ (119.1)
--- ------------- -- ------------- --- ------------- -- -------------
</TABLE>
Most of emerging businesses' 1998 revenues were from Sprint Paranet's
operations. Sprint acquired Houston-based Paranet, Inc., in September 1997 to
allow Sprint to capitalize on the accelerating demand for network management
services.
Costs incurred in both 1998 periods were mainly due to the development of ION
and costs related to the buildout and market launches of the SprintCom PCS
markets. SprintCom launched service in Jacksonville and Tallahassee, Florida, in
the 1998 third quarter and expects to expand into several new markets by
year-end. Sprint will continue to devote significant resources through 1999 to
develop ION as well as to fund the network buildout and launch the SprintCom
markets (see "Strategic Initiatives - Integrated On-demand Network" for more
information).
In June 1998, Sprint completed the strategic alliance to combine Sprint's
Internet business with EarthLink Network Inc., an Internet service provider.
As part of the alliance, EarthLink obtained Sprint's Internet Passport customers
and took over the day-to-day operations of those services. Beginning with the
1998 third quarter, the emerging businesses segment no longer includes the
operating results of Sprint's Internet business.
<PAGE>
Nonoperating Items
Interest Expense
The difference between the interest expense disclosed in the following table and
that disclosed in the Consolidated Income Statements relates to interest expense
on items such as deferred compensation, the employee stock purchase plan and
customer deposits -- items not related to borrowings. We have excluded interest
expense related to these items from the following table so as not to distort
Sprint's calculation of the effective interest rate on borrowings. Interest
costs on borrowings consisted of the following:
<TABLE>
<CAPTION>
Quarter Ended Year-to-Date
September 30, September 30,
---------------------------------- ----------------------------------
1998 1997 1998 1997
- -------------------------------------------- ----------------- ---------------- ----------------- ----------------
(in millions)
<S> <C> <C> <C> <C>
Interest expense on outstanding debt $ 47.2 $ 47.7 $ 152.2 $ 117.1
Capitalized interest costs 33.4 13.0 74.7 69.7
- -------------------------------------------- --- ------------- -- ------------- --- ------------- -- -------------
Total interest costs on outstanding debt $ 80.6 $ 60.7 $ 226.9 $ 186.8
--- ------------- -- ------------- --- ------------- -- -------------
Average debt outstanding $ 5,280.6 $ 3,132.6 $ 4,613.0 $ 3,156.4
--- ------------- -- ------------- --- ------------- -- -------------
Effective interest rate 6.1% 7.8% 6.6% 7.9%
--- ------------- -- ------------- --- ------------- -- -------------
</TABLE>
Through June 1997, Sprint capitalized interest costs on borrowings related to
its investment in Sprint PCS. Sprint stopped capitalizing these costs because
Sprint PCS no longer qualified as a development-stage company. Sprint continues
to capitalize interest costs related to the buildout of the SprintCom markets.
Sprint begins amortizing capitalized interest as markets are launched and the
related network assets are put into service.
The decrease in Sprint's effective interest rate for both 1998 periods reflects
an increase in short-term borrowings, which have lower interest rates. Through
September 1998, short-term borrowings have been classified as long-term debt
because of Sprint's intent and ability, through unused credit facilities, to
refinance these borrowings. Average debt outstanding increased to support the
buildout of the SprintCom PCS markets and to fund capital contributions to
Sprint PCS and investments in other Sprint affiliates.
Global One
Global One's revenues totaled $278 million in the 1998 third quarter compared
with $281 million in the 1997 third quarter. Year-to-date revenues were $801
million in 1998 versus $810 million in the same period a year ago. Sprint's
losses related to Global One totaled $33 million in the 1998 third quarter
versus $41 million a year ago, while 1998 year-to-date losses totaled $120
million compared with $88 million for the first nine months of 1997.
In an effort to improve profitability, Global One is refocusing its efforts to
place more emphasis on multinational customers. In addition, it is continuing to
review its operations, implement expense controls, and focus on improving the
network infrastructure. Global One is in the process of implementing its plan to
address these items, which may result in one-time charges.
<PAGE>
Sprint PCS
Sprint PCS' third quarter revenues totaled $320 million in 1998 versus $75
million in 1997, while 1998 year-to-date revenues were $788 million versus $111
million a year ago. Sprint's third quarter losses from Sprint PCS were $251
million in 1998 versus $187 million in 1997, while 1998 year-to-date losses
totaled $687 million compared with $409 million a year ago. The 1998 losses
reflect marketing and promotional costs, and operating costs to support a
growing customer base. At the end of September 1998, Sprint PCS had more than
1.75 million customers. The venture continues to aggressively obtain new
customers, which will result in higher losses in 1998 and 1999 compared with
1997.
Average monthly revenue per customer (ARPU) was $55 for the 1998 third quarter
and $57 for the 1998 year-to-date period. These averages are expected to decline
(consistent with industry projections) due to increased competition resulting
from additional wireless service providers entering the market and the addition
of lower usage subscribers to the subscriber base. Sprint PCS has adopted
marketing plans that both target and encourage higher use and higher ARPU.
Customer turnover rates have been as expected at this stage of development and
continue to be within the range of results reported by other PCS providers. As
the PCS markets mature and Sprint PCS gains additional scale, both of these
measures are expected by management to trend downward toward cellular industry
levels.
In May 1998, Sprint announced it had reached an agreement with the Cable Parents
to restructure the ownership interests of Sprint PCS. See "Strategic Initiatives
- - Restructuring and Recapitalization Plans" for more information.
Other Income (Expense), Net
Other income (expense) consisted of the following:
<TABLE>
<CAPTION>
Quarter Ended Year-to-Date
September 30, September 30,
----------------- ---------------- ----------------- ----------------
1998 1997 1998 1997
- -------------------------------------------- ----------------- ---------------- ----------------- ----------------
(in millions)
<S> <C> <C> <C> <C>
Dividend and interest income $ 16.7 $ 10.0 $ 49.1 $ 52.8
Other, net (6.6) (12.9) (0.5) (1.0)
- -------------------------------------------- --- ------------- -- ------------- --- ------------- -- -------------
Total other income (expense), net $ 10.1 $ (2.9) $ 48.6 $ 51.8
--- ------------- -- ------------- --- ------------- -- -------------
</TABLE>
The increase in dividend and interest income for the 1998 third quarter was
mainly due to interest earned on loans to unconsolidated affiliates.
Income Taxes
See Note 4 of Condensed Notes to Consolidated Financial Statements for the
differences that caused Sprint's effective income tax rates to vary from the
statutory federal rate.
Extraordinary Item
In March 1998, Sprint redeemed, prior to maturity, $115 million of debt with a
9.25% interest rate. This resulted in a $4 million ($0.01 per diluted share)
after-tax loss.
Financial Condition
Sprint's consolidated assets totaled $20.5 billion at the end of September 1998
and $18.2 billion at year-end 1997. Net property, plant and equipment increased
$2.0 billion since year-end 1997 mainly because of capital expenditures,
including capital leases, to support the network buildout of the SprintCom
markets. The increase also reflects capital expenditures to support the core
long distance and local networks and expanded product and service offerings.
Sprint's debt-to-capital ratio was 37.3% at the end of September 1998 versus
30.0% at year-end 1997. See "Liquidity and Capital Resources" for more
information about changes in Sprint's Consolidated Balance Sheets.
<PAGE>
Liquidity and Capital Resources
Operating Activities
Sprint's operating activities provided cash of $3.0 billion in the 1998
year-to-date period versus $2.4 billion in the same 1997 period, a 22% increase.
Operating cash flows for 1998 mainly reflect improved operating results in
Sprint's core businesses.
Investing Activities
Sprint's investing activities used cash of $3.7 billion in the first nine months
of 1998 versus $3.2 billion in the same period a year ago. Capital expenditures,
which are Sprint's largest investing activity, totaled $3.0 billion in the 1998
year-to-date period and $1.9 billion in 1997. Year-to-date local division
capital expenditures totaled $1.0 billion for 1998 versus $934 million for 1997.
Expenditures in both years were made to accommodate access line growth and
expand capabilities for providing enhanced services. Long distance division
capital expenditures totaled $977 million for the first nine months of 1998
versus $747 million for the same period a year ago. Expenditures in both years
were incurred mainly to enhance network reliability, meet increased demand for
data-related services, and upgrade capabilities for providing new products and
services. Capital expenditures in 1998 also reflect $713 million related to the
buildout of the SprintCom PCS markets.
In the first nine months of 1997, Sprint paid $460 million toward its purchase
of the SprintCom PCS licenses. Also in 1997, Sprint purchased the net assets of
Paranet, Inc. for $375 million.
"Investments in and loans to affiliates, net" consisted of the following:
<TABLE>
<CAPTION>
Year-to-Date
September 30,
----------------------------------
1998 1997
- -------------------------------------------------------------- -- ------------- --- ------------- -- -------------
(in millions)
Sprint PCS
<S> <C> <C>
Capital contributions $ 193.5 $ 255.5
Loans and advances, net 113.6 108.2
Capitalized interest - 46.3
- -------------------------------------------------------------- -- ------------- --- ------------- -- -------------
307.1 410.0
- -------------------------------------------------------------- -- ------------- --- ------------- -- -------------
Global One
Capital contributions 283.5 -
Advances, net (118.7) 62.7
- -------------------------------------------------------------- -- ------------- --- ------------- -- -------------
164.8 62.7
Other, net 230.5 35.8
- -------------------------------------------------------------- -- ------------- --- ------------- -- -------------
Total $ 702.4 $ 508.5
--- ------------- -- -------------
</TABLE>
Capital contributions and net advances to Sprint PCS in both years were used to
fund capital and operating requirements. Capital contributions and net advances
to Global One in 1998 were used mainly to fund operations. "Other, net" includes
Sprint's investment in Earthlink and its $148 million investment in Call-Net
Enterprises Inc. to retain its 25% interest after Call-Net purchased Fonorola
Inc.
Financing Activities
Sprint's year-to-date financing activities provided cash of $705 million in
1998, while year-to-date 1997 activities used cash of $238 million. Financing
activities during 1998 reflect proceeds from long-term debt of $946 million and
increased construction obligations of $429 million, partly offset by payments on
long-term debt of $247 million. Proceeds from borrowings in 1998 were mainly
used to fund the buildout of the SprintCom PCS markets and to fund capital
contributions to Sprint PCS and Global One and investments in other Sprint
affiliates. In the first nine months of 1997, financing activities reflect an
increase in short-term borrowings of $195 million, offset by payments on
long-term debt of $111 million. Sprint paid dividends of $292 million in the
first nine months of 1998 and $275 million in the first nine months of 1997.
<PAGE>
Capital Requirements
Sprint's 1998 investing activities, mainly consisting of capital expenditures
and investments in affiliates, are expected to require cash of $5.5 to $5.7
billion. Dividend payments are expected to total $430 million in 1998.
Sprint expects to spend $4.9 to $5.1 billion on capital expenditures in 1998,
including $2.8 to $2.9 billion for the long distance and local divisions. The
remainder will mainly be used to build out the SprintCom network.
Global One is also expected to require $300 to $400 million from Sprint in 1998
to help fund operations and ongoing development activities.
Sprint and the Cable Parents have loaned $400 million to fund Sprint Spectrum
Holdings' capital requirements from the date the PCS Restructuring agreement
was signed (May 26, 1998) through September 30, 1998. The PhillieCo Partners
have loaned $50 million to PhillieCo to fund operating and working capital
requirements and capital expenditures through September 30, 1998. Sprint has
also loaned $110.6 million to fund SprintCom's capital requirements as part
of the PCS Restructuring through September 30, 1998. Sprint has been financing
SprintCom with Sprint's cash from operations, commercial paper borrowings and
leases on specific equipment. Sprint intends to continue to fund the buildout
of the SprintCom markets through the closing of the PCS Restructuring. These
loans, totaling $510.6 million excluding loans to PhillieCo, will be
converted at the closing of the PCS Restructuring into 10-year preferred stock
of Sprint convertible into PCS Stock.
Liquidity
Sprint currently uses the commercial paper market to fund its short-term working
capital needs. Sprint uses four commercial paper dealers to place the paper at
the most favorable rates and maturities. Sprint also uses the medium-term note
and long-term bond markets as well as other debt markets to fund its needs.
Sprint intends to borrow funds through the U.S. and international money and
capital markets and bank credit markets to fund capital expenditures, operating
and working capital requirements and to refinance existing Sprint PCS debt
obligations after the PCS Restructuring.
In August 1998, Sprint entered into $5.0 billion of new revolving credit
facilities with syndicates of domestic and international banks. These facilities
support Sprint's commercial paper operations and replace its previous $1.5
billion revolving credit facility. At the end of September 1998, Sprint could
borrow $3.6 billion under these new facilities. Sprint also has a separate
five-year revolving credit facility with a bank. The unused capacity under the
committed portion of that facility was $100 million.
In October 1998, Sprint filed a shelf registration statement with the Securities
and Exchange Commission (SEC) for $8.0 billion of debt securities. This shelf
registration replaced $1.0 billion of Sprint's existing shelf registration
statements. Proceeds from the sale of securities under this shelf registration
statement will be used to repay short-term borrowings, refinance existing
long-term borrowings, and provide funds for working capital and new capital
expenditures for both the PCS and FON Groups. Sprint currently expects to offer
up to $3 billion under the new shelf registration at approximately the same
time as the PCS Restructuring. There can be no assurance that such debt
offering will occur.
Any borrowings Sprint may incur are ultimately limited by certain debt
covenants. Sprint could borrow up to $13.8 billion at September 30, 1998 under
the most restrictive of its debt covenants. Among other restrictions, Sprint
must maintain certain levels of consolidated net worth.
In late September, Sprint filed a registration statement with the SEC for an IPO
of shares of Series 1 PCS Stock. In late October, Sprint announced that it
elected to proceed with a tax-free recapitalization of Sprint's common stock
concurrent with the PCS Restructuring and delay the planned IPO. Sprint decided
to delay the IPO due to current general market conditions. Sprint will continue
to evaluate market conditions and may proceed with a public offering of the
Series 1 PCS stock at a later date.
DT and FT have agreed to purchase PCS Stock as part of the PCS Restructuring to
maintain their combined 20% voting power. Proceeds from the exercise of these
equity purchase rights are expected to total between $75 and $100 million. These
proceeds will be used to fund working capital needs and the continued buildout
of the PCS Group's network.
<PAGE>
Financial Strategies
General Hedging Policies
Sprint selectively enters into interest rate swap and cap agreements to manage
its exposure to interest rate changes on its debt. Sprint also enters into
forward contracts and options in foreign currencies to reduce the impact of
changes in foreign exchange rates. Sprint seeks to minimize counterparty credit
risk through stringent credit approval and review processes, the selection of
only the most creditworthy counterparties, continual review and monitoring of
all counterparties, and thorough legal review of contracts. Sprint also controls
exposure to market risk through regular monitoring of changes in foreign
exchange and interest rate positions under normal and stress conditions to
ensure they do not exceed established limits.
Sprint's derivative transactions are used for hedging purposes only and comply
with Board-approved policies. Senior management receives monthly status updates
of all outstanding derivative positions.
Interest Rate Risk Management
Sprint's interest rate risk management program focuses on minimizing exposure to
interest rate movements, setting an optimal mixture of floating- and fixed-rate
debt and minimizing liquidity risk. Sprint uses simulation analysis to assess
its interest rate exposure and to establish the desired ratio of floating- and
fixed-rate debt. To the extent possible, Sprint manages interest rate exposure
and the floating-to-fixed ratio through its borrowings, but sometimes uses
interest rate swaps and caps to adjust its risk profile.
Foreign Exchange Risk Management
Sprint's foreign exchange risk management program focuses on hedging transaction
exposure to optimize consolidated cash flow. Sprint's main transaction exposure
results from net payments made to overseas telecommunications companies for
completing international calls made by Sprint's domestic customers.
Year 2000 Issue
Sprint
The "Year 2000" issue affects Sprint's installed computer systems, network
elements, software applications, and other business systems that have
time-sensitive programs that may not properly reflect or recognize the year
2000. Because many computers and computer applications define dates by the last
two digits of the year, "00" may not be properly identified as the year 2000.
This error could result in miscalculations or system errors. The Year 2000 issue
may also affect the systems and applications of Sprint's customers, vendors or
resellers.
Sprint started a program in 1996 to identify and address the Year 2000 issue. It
has completed an inventory and Year 2000 assessment of its principal computer
systems, network elements, software applications and other business systems.
Sprint expects to substantially complete the renovation of these computer
systems, software applications and the majority of the network elements and
other business systems by year-end 1998. Year 2000 testing commenced in the
third quarter of 1998 and will be completed during 1999. Sprint is using both
internal and external sources to identify, correct or reprogram, and test its
systems for Year 2000 compliance. Sprint is also contacting others with whom it
conducts business to receive the appropriate warranties and assurances that
those third parties are or will be Year 2000 compliant.
Sprint expects to incur approximately $250 million in 1998 and 1999 to complete
its Year 2000 compliance program. If compliance is not achieved in a timely
manner by Sprint or any significant related third party, the Year 2000 issue
could have a material adverse effect on Sprint's operations. Sprint is focusing
on identifying and addressing all aspects of its operations that may be affected
by the Year 2000 issue and is addressing the most critical applications first.
Although Sprint intends to develop and, if necessary, implement appropriate
contingency plans to mitigate to the extent possible the effects of any
significant Year 2000 noncompliance, such plans may not be adequate and the cost
of Year 2000 compliance may be higher than $250 million.
<PAGE>
Affiliates
Sprint's results of operations and financial condition could also be materially
adversely affected by the failure of its affiliates, including Global One and
Sprint PCS, to achieve Year 2000 compliance in a timely manner.
As a result of the PCS Restructuring, Sprint will acquire management control of
Sprint PCS; therefore, the following discussion provides additional information
related to the Year 2000 compliance efforts of Sprint PCS.
Sprint PCS is undertaking an inventory of its computer systems, network
elements, software applications, products and other business systems. These
inventories are targeted to be completed by year-end 1998. Once an item is
identified through the inventory process, its Year 2000 impact is assessed and a
plan is developed to address any required renovation. Sprint PCS is using both
internal and external resources to identify, correct or reprogram, and test its
systems for Year 2000 compliance. It is planning that Year 2000 compliance for
these critical systems will be achieved in 1999. Sprint PCS is also contacting
others with whom it conducts business to receive the appropriate warranties and
assurances that those third parties are or will be Year 2000 complaint. However,
full compliance may not be achieved as planned by Sprint PCS and such third
parties. As a result, Sprint PCS may not receive warranties and assurances from
such third parties. Sprint PCS relies on third-party vendors for a significant
number of its important operating and computer system functions, and therefore
is highly dependent on such third-party vendors for the remediation of network
elements, computer systems, software applications and other business systems. In
addition, Sprint PCS uses publicly available services that are acquired without
contract (for example, global positioning system timing signal) that may be
subject to the Year 2000 issue. While Sprint PCS believes these systems will be
Year 2000 compliant, they have no contractual or other right to compel
compliance. Based upon our evaluations to date, Sprint PCS believes that the
total cost of modifications and conversions of their systems will not be
material, however such cost could become material because of the various reasons
described above, many of which are out of the control of Sprint PCS.
Impact of Recently Issued Accounting Pronouncement
See Note 10 of Condensed Notes to Consolidated Financial Statements for a
discussion of a recently issued accounting pronouncement.
<PAGE>
PART I.
Item 3.
QUANTITATIVE AND QUALITATIVE DISCLOSURES
ABOUT MARKET RISK SPRINT CORPORATION
Sprint's exposure to market risk through derivative financial instruments and
other financial instruments, such as investments in marketable securities and
long-term debt, is not material. There have been no material changes in market
risk since year-end 1997.
<PAGE>
PART II.
Other Information
Item 1. Legal Proceedings
There were no reportable events during the quarter ended September 30,
1998.
Item 2. Changes in Securities
If Sprint shareholders approve the proposal to restructure Sprint's
wireless operations, Sprint's existing common stock will be
recapitalized into PCS Stock and FON Stock. The meeting of shareholders
to vote on the proposal has been scheduled for November 13, 1998. See
Management's Discussion and Analysis of Financial Condition and Results
of Operations for further discussion regarding the restructuring
transaction.
Item 3. Defaults Upon Senior Securities
There were no reportable events during the quarter ended September 30,
1998.
Item 4. Submission of Matters to a Vote of Security Holders
There were no reportable events during the quarter ended September 30,
1998.
Item 5. Other Information
Ratio of Earnings to Fixed Charges
Sprint's ratio of earnings to fixed charges was 5.65 for the 1998 third
quarter versus 7.04 for the 1997 third quarter and 5.70 for the 1998
year-to-date period versus 6.55 for the same period a year ago. The
ratios were computed by dividing fixed charges into the sum of earnings
(after certain adjustments) and fixed charges. Earnings include income
from continuing operations before taxes, plus equity in the net losses
of less-than-50% owned entities, less capitalized interest. Fixed
charges include (a) interest on all debt of continuing operations
(including amortization of debt issuance costs), (b) the interest
component of operating rents, and (c) the pre-tax cost of subsidiary
preferred stock dividends.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
(2) Restructuring and Merger Agreement By and Among Sprint
Corporation, Tele-Communications, Inc., Comcast Corporation,
Cox Communications, Inc. and certain of their subsidiaries,
dated as of May 26, 1998 (filed as Exhibit 2 to Sprint
Corporation Current Report on Form 8-K dated May 26, 1998 and
incorporated herein by reference).
(4) Indentures
(a) Indenture (including form of security) dated as of
October 1, 1998, between Sprint Corporation and Bank
One, N.A., as Trustee.
(b) Indenture (including form of security) dated as of
October 1, 1998, among Sprint Capital Corporation,
Sprint Corporation and Bank One, N.A., as Trustee.
<PAGE>
(10) Material Agreements
(a) Master Restructuring and Investment Agreement Among
Sprint Corporation, France Telecom S.A. and Deutsche
Telecom AG, dated as of May 26, 1998 (filed as
Exhibit 99(B) to Sprint Corporation Current Report on
Form 8-K dated May 26, 1998 and incorporated herein
by reference).
(b) 364-Day Credit Agreement, dated as of August 7, 1998,
among Sprint Corporation and Sprint Capital
Corporation, as Borrowers, and the Initial Lenders
Named Therein, as Initial Lenders, and Citibank,
N.A., as Administrative Agent and Morgan Guaranty
Trust Company of New York, as Syndication Agent, and
Bank of America National Trust and Savings
Association and The Chase Manhattan Bank, as
Documentation Agents (filed as Exhibit 10.23 to
Sprint Corporation Registration Statement No.
333-64241 and incorporated herein by reference).
(c) Five-Year Credit Agreement, dated as of August 7,
1998, among Sprint Corporation and Sprint Capital
Corporation, as Borrowers, and the Initial Lenders
Named Therein, as Initial Lenders, and Citibank,
N.A., as Administrative Agent, and Morgan Guaranty
Trust Company of New York, as Syndication Agent, and
Bank of America National Trust and Savings
Association and The Chase Manhattan Bank, as
Documentation Agents (filed as Exhibit 10.24 to
Sprint Corporation Registration Statement No.
333-64241 and incorporated herein by reference).
(10) Executive Compensation Plans and Arrangements
(d) Summary of Executive Officer and Board of Directors
Benefits.
(12) Computation of Ratio of Earnings to Fixed Charges
(27) Financial Data Schedule
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the quarter ended September
30, 1998.
<PAGE>
SIGNATURE
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 thereunto duly authorized.
SPRINT CORPORATION
(Registrant)
By /s/ John P. Meyer
John P. Meyer
Senior Vice President -- Controller
Principal Accounting Officer
Dated: November 2, 1998
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER
(2) Restructuring and Merger Agreement By and Among Sprint
Corporation, Tele-Communications, Inc., Comcast Corporation,
Cox Communications, Inc. and certain of their subsidiaries,
dated as of May 26, 1998 (filed as Exhibit 2 to Sprint
Corporation Current Report on Form 8-K dated May 26, 1998 and
incorporated herein by reference).
(4) Indentures
(a) Indenture (including form of security) dated as of
October 1, 1998, between Sprint Corporation and Bank
One, N.A., as Trustee.
(b) Indenture (including form of security) dated as of
October 1, 1998, among Sprint Capital Corporation,
Sprint Corporation and Bank One, N.A., as Trustee.
(10) Material Agreements
(a) Master Restructuring and Investment Agreement Among
Sprint Corporation, France Telecom S.A. and Deutsche
Telecom AG, dated as of May 26, 1998 (filed as
Exhibit 99(B) to Sprint Corporation Current Report on
Form 8-K dated May 26, 1998 and incorporated herein
by reference).
(b) 364 Day Credit Agreement, dated as of August 7, 1998,
among Sprint Corporation and Sprint Capital
Corporation, as Borrowers, and the Initial Lenders
Named Therein, as Initial Lenders, and Citibank,
N.A., as Administrative Agent and Morgan Guaranty
Trust Company of New York, as Syndication Agent, and
Bank of America National Trust and Savings
Association and the Chase Manhattan Bank, as
Documentation Agents (filed as Exhibit 10.23 to
Sprint Corporation Registration Statement No.
333-64241 and incorporated herein by reference).
(c) Five Year Credit Agreement, dated as of August 7,
1998, among Sprint Corporation and Sprint Capital
Corporation, as Borrowers, and the Initial Lenders
Named Therein, as Initial Lenders, and Citibank,
N.A., as Administrative Agent, and Morgan Guaranty
Trust Company of New York, as Syndication Agent, and
Bank of America National Trust and Savings
Association and The Chase Manhattan Bank, as
Documentation Agents (filed as Exhibit 10.24 to
Sprint Corporation Registration Statement No.
333-64241 and incorporated herein by reference).
(10) Executive Compensation Plans and Arrangements
(d) Summary of Executive Officer and Board of Directors
Benefits.
(12) Computation of Ratio of Earnings to Fixed Charges
(27) Financial Data Schedule
Exhibit 4(a)
================================================================================
SPRINT CORPORATION
TO
BANK ONE, N.A.
TRUSTEE
-----------------
INDENTURE
Dated as of October 1, 1998
-----------------
===============================================================================
SPRINT CAPITAL CORPORATION AND SPRINT CORPORATION
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
(S)310(a)(1) 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 608
610
(S)311(a) 613
(b) 613
(S)312(a) 701
702
(b) 702
(c) 702
(S)313(a) 703
(b) 703
(c) 703
(d) 703
(S)314(a) 704
(a)(4) 101
1004
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
(S)315(a) 601
(b) 602
(c) 601
(d) 601
(e) 514
(S)316(a) 101
(a)(1)(A) 502
512
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
(c) 104
(S)317(a)(1) 503
(a)(2) 504
(b) 1003
(S)318(a) 107
- -------------
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of this Indenture.
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions........................................
Section 102. Compliance Certificates and Opinions...............
Section 103. Form of Documents Delivered to Trustee.............
Section 104. Acts of Holders; Record Dates......................
Section 105. Notices, Etc., to Trustee, Company or Guarantor....
Section 106. Notice to Holders; Waiver..........................
Section 107. Conflict with Trust Indenture Act..................
Section 108. Effect of Headings and Table of Contents...........
Section 109. Successors and Assigns.............................
Section 110. Separability Clause................................
Section 111. Benefits of Indenture..............................
Section 112. Governing Law......................................
Section 113. Legal Holidays.....................................
Section 114. Counterparts.......................................
ARTICLE II SECURITY FORMS
Section 201. Forms Generally....................................
Section 202. Form of Face of Security...........................
Section 203. Form of Reverse of Security........................
Section 204. Additional Provisions Required in Global Security..
Section 205. Form of Trustee's Certificate of Authentication....
Section 206. CUSIP Numbers......................................
ARTICLE III THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series...............
Section 302. Denominations......................................
Section 303. Execution, Authentication, Delivery and Dating.....
- -----------------
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of this Indenture.
ii
Section 304. Temporary Securities...............................
Section 305. Registration, Registration of Transfer and
Exchange...........................................
Section 306. Mutilated, Destroyed, Lost and Stolen Securities...
Section 307. Payment of Interest; Interest Rights Preserved.....
Section 308. Persons Deemed Owners..............................
Section 309. Cancellation.......................................
Section 310. Computation of Interest............................
ARTICLE IV SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture..............
Section 402. Application of Trust Money...........................
ARTICLE V REMEDIES
Section 501. Events of Default....................................
Section 502. Acceleration of Maturity, Rescission and Annulment...
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee...........................................
Section 504. Trustee May File Proofs of Claim.....................
Section 505. Trustee May Enforce Claims Without Possession of
Securities...........................................
Section 506. Application of Money Collected.......................
Section 507. Limitation on Suits..................................
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.................................
Section 509. Restoration of Rights and Remedies...................
Section 510. Rights and Remedies Cumulative.......................
Section 511. Delay or Omission Not Waiver.........................
Section 512. Control by Holders...................................
Section 513. Waiver of Past Defaults..............................
Section 514. Undertaking for Costs................................
Section 515. Waiver of Stay or Extension Laws.....................
ARTICLE VI THE TRUSTEE
Section 601. Certain Duties and Responsibilities..................
Section 602. Notice of Defaults...................................
- -----------------
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of this Indenture.
iii
Section 603. Certain Rights of Trustee............................
Section 604. Not Responsible for Recitals or Issuance of
Securities...........................................
Section 605. May Hold Securities..................................
Section 606. Money Held in Trust..................................
Section 607. Compensation and Reimbursement.......................
Section 608. Disqualification; Conflicting Interests..............
Section 609. Corporate Trustee Required; Eligibility..............
Section 610. Resignation and Removal; Appointment of Successor....
Section 611. Acceptance of Appointment by Successor...............
Section 612. Merger, Conversion, Consolidation or Succession to
Business.............................................
Section 613. Preferential Collection of Claims Against Company ...
ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses
of Holders...........................................
Section 702. Preservation of Information; Communications to
Holders..............................................
Section 703. Reports by Trustee...................................
Section 704. Reports by Company...................................
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on
Certain Terms........................................
Section 802. Successor Substituted................................
ARTICLE IX SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders...
Section 902. Supplemental Indentures with Consent of Holders......
Section 903. Execution of Supplemental Indentures.................
Section 904. Effect of Supplemental Indentures....................
Section 905. Conformity with Trust Indenture Act..................
Section 906. Reference in Securities to Supplemental Indentures...
- -----------------
NOTE: This table of contents shall not, for any purpose, be
deemed a part of the Indenture.
iv
ARTICLE X COVENANTS
Section 1001. Payment of Principal, Premium and Interest..........
Section 1002. Maintenance of Office or Agency.....................
Section 1003. Money for Securities Payments to Be Held in Trust...
Section 1004. Statement by Officers as to Default.................
Section 1005. Existence ..........................................
Section 1006. Maintenance of Properties...........................
Section 1007. Payment of Taxes and Other Claims ..................
Section 1008. Limitation Upon Mortgages and Liens of the Company..
Section 1009. Waiver of Certain Covenants ........................
ARTICLE XI REDEMPTION OF SECURITIES
Section 1101. Applicability of Article............................
Section 1102. Election to Redeem; Notice to Trustee...............
Section 1103. Selection by Trustee of Securities to Be Redeemed...
Section 1104. Notice of Redemption................................
Section 1105. Deposit of Redemption Price.........................
Section 1106. Securities Payable on Redemption Date...............
Section 1107. Securities Redeemed in Part.........................
ARTICLE XII SINKING FUNDS
Section 1201. Applicability of Article...........................
Section 1202. Satisfaction of Sinking Fund Payments with
Securities.........................................
Section 1203. Redemption of Securities for Sinking Fund..........
ARTICLE XIII DEFEASANCE
Section 1301. Applicability of Article: Company's Option to Effect
Defeasance ........................................
Section 1302. Defeasance and Discharge...........................
Section 1303. Covenant Defeasance................................
- --------------------------
NOTE: This table of contents shall not, for any purpose, be
deemed a part of the Indenture.
v
Section 1304. Conditions to Defeasance ..........................
Section 1305. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous.................
Section 1306. Reinstatement......................................
ARTICLE XIV SHAREHOLDERS' MEETINGS
Section 1401. Purposes for Which Meetings May be Called..........
Section 1402. Manner of Calling Meetings.........................
Section 1403. Call of Meetings by Company or Holders.............
Section 1404. Who May Attend and Vote at Meeting.................
Section 1405. Regulations May be Made by Trustee.................
Section 1406. Evidence of Actions by Holders.....................
Section 1407. Exercise of Rights of Trustee and Holders Not to
be Hindered or Delayed.............................
- --------------------------
NOTE: This table of contents shall not, for any purpose, be
deemed a part of the Indenture.
INDENTURE, dated as of October 1, 1998, between Sprint Corporation, a
corporation duly organized and existing under the laws of the State of Kansas
(herein called the "Company"), having its principal office at 2330 Shawnee
Mission Parkway, Westwood, Kansas, and Bank One, N.A., a national banking
association, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
Now, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation;
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(4) in the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including" and the
words "to" and "until" each mean "to but excluding";
(5) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
(6) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, as to any Sale and Leaseback Transaction under
which any Person is at the time liable, at any date as of which the amount
thereof is to be determined, the total net amount of rent required to be paid by
such Person under such lease during the remaining term thereof (excluding any
subsequent renewal or other extension options held by the lessee), discounted
from the respective due dates thereof to such date of determination at the rate
of interest per annum implicit in the terms of such lease, as determined in good
faith by the Company, compounded annually. The net amount of rent required to
be paid under any such lease for any such period shall be the amount of rent
payable by the lessee with respect to such period, after excluding amounts
required to be paid on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges and contingent rents.
"Authenticating Agent" means any Person authorized by the Trustee to act on
behalf of the Trustee to authenticate Securities of one or more series.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification.
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"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Lease Obligations" means indebtedness represented by obligations
under a lease that is required to be capitalized for financial reporting
purposes in accordance with generally accepted accounting principles and the
amount of such indebtedness shall be the capitalized amount of such obligations
determined in accordance with generally accepted accounting principles
consistently applied.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Net Tangible Assets" means the consolidated total assets of
the Company and its Subsidiaries as reflected in the Company's most recent
balance sheet preceding the date of determination prepared in accordance with
generally accepted accounting principles consistently applied, less (i) current
liabilities (excluding current maturities of long-term debt and Capital Lease
Obligations) and (ii) goodwill, tradenames, trademarks, patents, minority
interests of others, unamortized debt discount and expense and other like
intangible assets, (excluding any investments in permits or licenses issued,
granted or approved by the Federal Communications Commission or any successor
thereto).
"Corporate Trust Office" means the principal office of the Trustee in
Columbus, Ohio at which at any particular time its corporate trust business
shall be administered, which office at the date of the execution of this
Indenture is located at 100 East Broad Street, Columbus, Ohio 43215, Attention:
Corporate Trust Services.
"Corporation" means a corporation, association, joint-stock company or
business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
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"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
Depositary for such series by the Company pursuant to Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security in the form prescribed in Section 204
evidencing all or part of a series of Securities, issued to the Depositary for
such series or its nominee, and registered in the name of such Depositary or
nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case, as amended from time to time.
"Lien" means, with respect to any Property of any Person, any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement or zoning restriction, encumbrance, preference,
priority or other security agreement or
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preferential arrangement of any kind or nature whatsoever on or with respect to
such Property including any Capital Lease Obligation, conditional sale or other
title retention agreement having substantially the same economic effect as any
of the foregoing or any Sale and Leaseback Transaction.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in Section
501(4) or 501(5).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice-Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 1004 shall be the principal
executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
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(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are
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to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made;
(iii) Securities as to which Defeasance has been effected pursuant
to Section 1302; and
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(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
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principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which the Trustee knows
are so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
"Participant" has the meaning specified in Section 204.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Permitted Liens" means (i) Liens existing on the date hereof; (ii) Liens
on Property existing at the time of acquisition thereof or to secure the payment
of all or any part of the purchase price thereof or to secure any indebtedness
incurred prior to, at the time of or within 270 days after the acquisition of
such Property for the purpose of financing all or any part of the purchase price
thereof; (iii) Liens securing indebtedness owing by a Restricted Subsidiary to
the Company or any wholly-owned Subsidiary of the Company; (iv) Liens on
Property of any entity, or on the stock, indebtedness or other obligations of
such entity, existing at the time (a) such entity becomes a Restricted
Subsidiary, (b) such entity is merged into or consolidated with the
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Company or a Restricted Subsidiary or (c) the Company or a Restricted
Subsidiary acquires all or substantially all of the assets of such entity;
provided that no such Lien extends to any other Property of the Company
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or any other Restricted Subsidiary; (v) Liens on Property to secure any
indebtedness incurred to provide funds for all or any part of the cost of
development of or improvements to such Property; (vi) Liens on the Property
of the Company or any of its Restricted Subsidiaries securing (a)
nondelinquent performance of bids or contracts (other than for borrowed
money, obtaining of advances or credit or the securing of debt), (b)
contingent obligations on surety and appeal bonds and (c) other nondelinquent
obligations of a like nature, in each case, incurred in the ordinary course of
business; (vii) Liens securing Capital Lease Obligations, provided that (a) any
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such Lien attaches to the Property within 270 days after the acquisition thereof
and (b) such Lien attaches solely to the Property so acquired; (viii) Liens
arising solely by virtue of any statutory or common law provision relating to
banker's liens, rights of set-off or similar rights and remedies as to deposit
accounts or other funds, provided that such deposit account is not a dedicated
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cash collateral account and is not subject to restrictions against access by the
Company or such Restricted Subsidiary, as the case may be, in excess of those
set forth by regulations promulgated by the Federal Reserve Board and such
deposit account is not intended by the Company or such Restricted Subsidiary to
provide collateral to the depository institution; (ix) pledges or deposits under
worker's compensation laws, unemployment insurance laws or similar legislation;
(x) statutory and tax Liens for sums not yet due or delinquent or which are
being contested or appealed in good faith by appropriate proceedings; (xi) Liens
arising solely by operation of law, such as mechanics', materialmen's,
warehouseman's and carriers' Liens and Liens of landlords or of mortgages of
landlords, on fixtures and movable Property located on premises leased in the
ordinary course of business; (xii) Liens on personal Property, other than shares
of stock or indebtedness of any Restricted Subsidiary, to secure loans maturing
not more than one year from the date of the creation thereof and on accounts
receivable associated with a receivables financing program of the Company or any
of its Restricted Subsidiaries; (xiii) any Lien created by or resulting from
litigation or other proceeding against, or upon property of, the Company or any
Restricted Subsidiary, or any lien for workmen's compensation awards or similar
awards, so long as the finality of such judgment or award is being contested and
execution thereon is stayed or such Lien relates to a final unappealable
judgment which is satisfied within 30 days of such judgment or any Lien incurred
by the Company or any Restricted Subsidiary for the purpose of obtaining a stay
or discharge in the course of any litigation or other proceeding; provided that
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such judgment or award does not constitute an Event of Default under clause (5)
of Section 501; (xiv) Liens on the real property of the Company or any
Restricted Subsidiary which constitute minor survey exceptions, minor
encumbrances, easements or reservations of, or rights of others for, rights of
way, sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of such real property,
provided that all of the liens referred to in this clause (xiv) in the aggregate
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do not at any time materially detract from the value of such real property or
materially impair its use in the operation of the business of the Company and
its Subsidiaries; (xv) Liens on Property of the Company or a Restricted
Subsidiary securing indebtedness or other obligations issued by the United
States of America or any State thereof or any department, agency or
instrumentality or political subdivision thereof, or by any
8
other country or any political subdivision thereof, for the purpose of
financing all or any part of the purchase price of (or, in the case of real
property, the cost of construction on or improvement of) any property or
assets subject to such Liens (including, but not limited to, Liens incurred
in connection with pollution control, industrial revenue or similar financings);
and (xvi) any renewal, extension or replacement (in whole or in part) of any
Lien permitted pursuant to exceptions (i), (ii), (iv), (v), (vii) and (xv)
above or of any indebtedness secured thereby, provided that such extension,
renewal or replacement Lien shall be limited to all or any part of the same
Property that secured the Lien extended, renewed or replaced (plus improvements
on such Property) and the principal amount of indebtedness secured thereby and
not otherwise authorized by clauses (i), (ii), (iv), (v), (vii) and (xv)
shall not exceed the principal amount of indebtedness plus any premium or fee
payable in connection with any such renewal, extension or replacement so
secured at the time of such renewal, extension or replacement.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Property" means any asset or property of a Person, whether now owned or
hereafter acquired, or any interest therein or any income or profits therefrom,
including capital stock and indebtedness of Subsidiaries.
"Receivables Subsidiary" means a special purpose wholly-owned Subsidiary
created in connection with any transactions that may be entered into by the
Company or any of its Subsidiaries pursuant to which the Company or any of its
Subsidiaries may sell, convey, grant a security interest in or otherwise
transfer undivided percentage interests in its receivables.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
9
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular subject
"Restricted Subsidiary" means any Subsidiary of the Company (other than a
Receivables Subsidiary or Sprint Capital) if (i) such Subsidiary has
substantially all of its Property in the United States (other than its
territories and possessions) and (ii) at the end of the most recent fiscal
quarter of the Company preceding the date of determination, the aggregate
amount, determined in accordance with generally accepted accounting principles
consistently applied, of securities of, loans and advances to, and other
investments in, such Subsidiary held by the Company and its other Subsidiaries,
less any securities of, loans and advances to, and other investments in the
Company and the Company's other Subsidiaries held by such Subsidiary or any of
its Subsidiaries, exceeded 15% of the Company's Consolidated Net Tangible
Assets.
"Sale and Leaseback Transaction" means, with respect to the Company or a
Restricted Subsidiary, any direct or indirect arrangement pursuant to which
Property is sold or transferred by the Company or such Restricted Subsidiary, as
the case may be, and is thereafter leased back from the purchaser or transferee
thereof by the Company or such Restricted Subsidiary, as the case may be.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
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"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation, partnership, limited liability company or
other business organization, whether or not incorporated, a majority of the
Voting Securities of which are owned, directly or indirectly, by the Company.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
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the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President".
"Voting Securities" of a Subsidiary means the stock or other ownership or
equity interests, of whatever class or classes, the holders of which ordinarily
have the power to vote for the election of the members of the board of
directors, managers or trustees of such Subsidiary (other than stock or other
ownership or equity interests having such power only by reason of the happening
of a contingency).
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
11
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
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Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given, made or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is herein expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders of Securities of such series, provided that the Company may not set a
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record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Securities of the relevant series
on such record date,and no other Holders, shall be entitled to take the relevant
action, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
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prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing in
this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
13
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Company, at its
own expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Trustee in
writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
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action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
--------
proposed new Expiration Date is given to the other parties hereto in writing,
and to each Holder of Securities of the relevant series in the manner set forth
in Section 106, on or prior to the existing Expiration Date. If an Expiration
Date is not designated with respect to any record date set pursuant to this
Section, the party hereto which set such record date shall be deemed to have
initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal
14
amount of such Security or by one or more duly appointed agents each of which
may do so pursuant to such appointment with regard to all or any part of such
principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee by first class mail, postage prepaid, at its
Corporate Trust Office, Attention: Corporate Trust Services, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument, Attention: Corporate Secretary, or at
any other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
15
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of law.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity.
16
SECTION 114. Counterparts.
This 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.
ARTICLE II
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
----------------------------------------------------------------
regulations thereunder.]
- ------------------------
No. ______ $_________
Sprint Corporation, a corporation duly organized and existing under the
laws of Kansas (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to ................, or registered assigns, the principal sum of
................... Dollars on ....................
17
[if the Security is to bear interest prior to Maturity, insert-- and to pay
--------------------------------------------------------------
interest thereon from ................. or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
.................. and ................... in each year, commencing ...........,
at the rate of .... % per annum, until the principal hereof is paid or made
available for payment [if applicable, insert-- , provided that any principal and
-------------------------
premium, and any such installment of interest, which is overdue shall bear
interest at the rate of ... % 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]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (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 ....... or ....... (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either
be paid to the Person in whose name this Security (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 Securities 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 Securities 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].
[If the Security is not to bear interest prior to Maturity, insert -- The
--------------------------------------------------------------------
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of .......% 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. Interest on any overdue
principal or premium shall be payable on demand. [Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ...... % per annum (to the extent that the payment of such interest on
interest shall be legally enforceable), from the date of such demand until the
amount so demanded is paid or made available for payment. Interest on any
overdue interest shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
---------------
insert -- any such] interest on this Security will be made at the office or
- --------
agency of the Company maintained for that purpose in ............ , in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert --;
-------------------------
provided, however, that at the option of the Company payment of interest may be
- -------------------
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
18
Reference is hereby made to the further provisions of this Security 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 Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: _________________
SPRINT CORPORATION
By .....................
Attest:
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of October 1, 1998 (herein called the
"Indenture" which term shall have the meaning assigned to it in such
instrument), between the Company and Bank One, N.A., as Trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof [if applicable, insert --, limited
----------------------
in aggregate principal amount to $ ........... ].
[If applicable, insert -- The Securities of this series are subject to
------------------------
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
-----------------------
(1) on ........... in any year commencing with the year ...... and ending with
the year ...... through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
--
applicable, insert -- on or after .......... , ........ ], as a whole or in
- -------------------
part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): If redeemed [if applicable,
--------------
insert -- on or before ............... , ........ %, and if redeemed] during the
- -------
12-month period beginning ............. of the years indicated,
Redemption Redemption
Year Price Year Price
---------- ---------- ---- -----
19
and thereafter at a Redemption Price equal to ..... % of the principal
amount, together in the case of any such redemption [if applicable, insert
----------------------
-- (whether through operation of the sinking fund or otherwise)] with
accrued interest to the Redemption Date, but interest installments whose
Stated Maturity is on or prior to such Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities, of
record at the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.]
[If applicable, insert -- The Securities of this series are subject to
-------------------------
redemption upon not less than 30 days' notice by mail, (1) on ............ in
any year commencing with the year .... and ending with the year .... through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
--
applicable, insert -- on or after ............ ], as a whole or in part, at the
- -------------------
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ............ of the years indicated,
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ----------------- ---------------------
and thereafter at a Redemption Price equal to ..... % of the principal
amount, together in the case of any such redemption (whether through
operation of the sinking fund or otherwise) with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close
of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company may
----------------------
not, prior to .............., redeem any Securities of this series as
contemplated by [if applicable, insert -- Clause (2) of] the preceding paragraph
----------------------
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly,of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than ......... % per annum.]
20
[If applicable, insert -- The sinking fund for this series provides for
----------------------
the redemption on in each year beginning with the year ............ and
ending with the year .......... of [if applicable, insert -- not less than
----------------------
$................. ("mandatory sinking fund") and not more than]
$..................... aggregate principal amount of Securities of this
series. Securities of this series acquired or redeemed by the Company
otherwise than through [if applicable, insert -- mandatory] sinking fund
----------------------
payments may be credited against subsequent [if applicable, insert --
----------------------
mandatory] sinking fund payments otherwise required to be made [if
--
applicable, insert -- in the inverse order in which they become due].]
-------------------
[If the Security is subject to redemption, insert -- In the event of
--------------------------------------------------
redemption of this Security in part only, a new Security or Securities 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 applicable, insert -- The Indenture contains provisions for defeasance
---------------------
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert - If an
--------------------------------------------------------------------
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an
----------------------------------------------------------------
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to --insert formula for determining the
----------------------------------
amount. Upon payment (i) of the amount of principal so declared due and payable
- --------
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in principal amount of the Securities
at the time Outstanding of each series to be affected. 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
20
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security 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
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series 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
Securities of this series 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 Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security 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 Security 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 Security is registerable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security 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 Securities 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 Securities of this series are issuable only in registered form without
coupons in denominations of $ ....... and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities 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.
22
Prior to due presentment of this Security 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 Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204. Additional Provisions Required in Global Security.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
"This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Security may not be exchanged in whole or in part for a
Security registered, and no transfer of this Security in whole or in part may be
registered, in the name of any Person other than such Depositary or a nominee
thereof, except in the limited circumstances described in the Indenture".
The Trustee and the Company may from time to time enter into, and
discontinue, an agreement with a Depositary including a "clearing agency"
registered under Section 17A of the Exchange Act, which is the owner of the
Securities, to establish procedures with respect to the Securities not
inconsistent with the provisions of this Indenture. Neither the Company nor the
Trustee will have any responsibility or obligation to the Depositary, any direct
or indirect participants (the "Participants") in the book entry system of any
such Depositary or the Holders of the Securities with respect to (i)the accuracy
of any records maintained by the Depositary or any Participant; (ii) the payment
by the Depositary or by any Participant of any amount due to any Holder in
respect of the principal amount or redemption or purchase price of, or interest
on, any Securities; (iii) the delivery of any notice by the Depositary or any
Participant; (iv) the selection of the Holders to receive payment in the event
of any partial redemption of the Securities; or (v) any other action taken by
the Depositary or any Participant.
SECTION 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
23
Bank One, N.A.,
As Trustee
.........................................
Authorized Signer
SECTION 206. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
--------
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE III
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
24
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities of the
series is payable;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any interest payable on any
Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable if other than the
Corporate Trust Office;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by Board resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(10) if other than the currency of the United Sates of America, the
currency, currencies or currency units in which the principal of or any
premium and interest on any Securities of the series shall be payable and
the manner of determining the equivalent thereof in the currency of the
United States of America for any purpose, including for purposes of the
definition of "Outstanding" in Section 101;
(11) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be
determined;
(12) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or a Holder
thereof, in one or more
25
currencies or currency units other than that or those in which such
Securities are stated to be payable, the currency, currencies or currency
units in which the principal of or any premium and interest on such
Securities as to which such election is made shall be payable, the
periods within which and the terms and conditions upon which such
election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion
of the principal amount of any Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof pursuant
to Section 502;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case,the manner in which such amount deemed to be
the principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or
any specified part, shall be defeasible pursuant to Section 1302 or Section
1303 or both such Sections and, if other than by a Board Resolution, the
manner in which any election by the Company to defease such Securities
shall be evidenced;
(16) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities,
the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 204 and any
circumstances in addition to or in lieu of those set forth in Clause (2) of
the last paragraph of Section 305 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer
of such Global Security in whole or in part may be registered, in the name
or names of Persons other than the Depositary for such Global Security or a
nominee thereof;
(17) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 502;
(18) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series;
26
(19) whether the Securities are to be issued with warrants to
purchase other Securities; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form without
coupons in such denominations as shall be specified as contemplated by Section
301. In the absence of any such provisions with respect to the Securities of any
series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile. The seal of the Company
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted on otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver
27
such Securities. If the form or terms of the Securities of the series have
been established in or pursuant to one or more Board Resolutions as permitted
by Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601) shall
be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form
has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section
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309, for all purposes of this Indenture such Security shall be deemed never to
have been authenticated and delivered hereunder and shall never be entitled to
the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series
at the office or agency of the Company in a Place of Payment for that series,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of a
like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any
29
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (i) to issue, register
the transfer of or exchange Securities of any series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (ii) to register the transfer
of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified
the Company that it is unwilling or unable to continue as Depositary for
such Global Security or (ii) has ceased to be a clearing agency registered
under the Exchange Act, (B) there shall have occurred and be continuing an
Event of Default with respect to such Global Security or (C) there shall
exist such circumstances, if any, in addition to or
30
in lieu of the foregoing as have been specified for this purpose as
contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security
for other Securities may be made in whole or in part, and all Securities
issued in exchange for a Global Security or any portion thereof shall be
registered in such names as the Depositary for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1107 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable
31
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly Provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be given to each Holder of Securities of such series in the manner set
forth in Section 106, less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall
be paid to the Persons in whose names the Securities of such series
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(or their respective Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order, provided, however, that the Trustee shall not be required to destroy such
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cancelled Securities.
33
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount
34
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation,
for principal and any premium and interest to the date of such deposit
(in the case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE V
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
34
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of series of Securities other than
that series), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 10% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company (including a default with
respect to Securities of any series other than that series) or any
Subsidiary or under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company (including this Indenture)
or any Subsidiary, whether such indebtedness now exists or shall hereafter
be created, which default shall have resulted in more than $50,000,000 in
aggregate principal amount of such indebtedness becoming or being declared
due and payable prior to the date on which it would otherwise have become
due and payable, without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled, within a period of 10 days
after there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 10% in principal amount of the Outstanding Securities of that
series a written notice specifying such default and requiring the Company
to cause such indebtedness to be discharged or cause such acceleration to
be rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; provided, however, that, subject to the provisions of
-------- -------
Sections 601 and 602, the Trustee shall not be deemed to have knowledge of
such default unless either (A) a Responsible Officer of the Trustee shall
have actual knowledge of such default or (B) the Trustee shall have
received written notice thereof from the Company, from any Holder, from the
holder of any such indebtedness or from the trustee under any such
mortgage, indenture or other instrument; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any
36
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company 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
(7) the commencement by the Company 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 it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to 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 it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company 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 the Company in
furtherance of any such action; or
(8) any other Event of Default provided with respect to Securities of
that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section
501(6) on 501(7)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all of the Securities of that
series (or, if any of the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default specified in Section 501(6)
or 501(7) with respect to Securities of any series at the time Outstanding
occurs, the principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified by the terms
thereof) shall automatically, and without any declaration or other action on the
part of the Trustee or any Holder, become immediately due and payable.
37
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof, the Company will, upon
demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for
principal and any premium and interest and, to the extent that payment of
such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the
38
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee,its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding, provided, however,
-------- -------
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
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SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of
and any premium and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal and any premium and interest, respectively;
THIRD: To the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series; it being
understood and intended that no one or more of such Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
of such Holders, or to obtain or to seek to obtain priority or preference
over any other of
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such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of
such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307) any
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder,then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
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SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that
---------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
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SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, and
if the Trustee has actual knowledge of such default, the Trustee shall give the
Holders of Securities of such series notice of such default as and to the extent
provided by the Trust Indenture Act; provided, however, that in the case of any
-------- -------
default of the character specified in Section 501(4) with respect to Securities
of such series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
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SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order or as otherwise
provided in Section 303 and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
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SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other agent
of the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder as shall be agreed to in writing between
the Company and the Trustee (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee and its directors, officers, employees and
agents for, and to hold it harmless against, any loss, liability, damage, claim
or expense incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or trusts
hereunder, including, without limitation, reasonable fees and expenses of its
counsel and the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
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When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable charges and expenses of its counsel) are intended to
constitute expenses of administration under any applicable Federal or State
bankruptcy, insolvency or similar law.
The provisions of this Section 607 shall survive the resignation or removal
of the Trustee and the termination of this Indenture. The Trustee shall have a
lien prior to the Securities as to all property and funds held by it hereunder
for any amount owing it pursuant to this Section 607, except with respect to
funds held in trust for the benefit of the Holders of particular Securities.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series or a trustee under the Indenture dated as of
October 1, 1998, among Sprint Capital Corporation, the Company and the Trustee.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one
or more other series. Each Trustee shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has a combined capital and surplus
of at least $50,000,000. If any such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee
with respect to the Securities of any series shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
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(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case, (i)
the Company by a Board Resolution may remove the Trustee with respect to
all securities, or (ii) subject to Section 514, any Holder who has been a
bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities
and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any Series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611,
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become the successor Trustee with respect to the Securities of such series and
to that extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any Series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of
a Security of such series for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of
such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee,
and (3) shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of
the same trust and that each such Trustee shall be trustee of a trust
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or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery
of such supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee shall, upon payment of its charges
relating to the Securities of that or those series to which the appointment of
such successor Trustee relates, duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than January 1 and July 1 in each year,
a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of the preceding December 15 or June 15 ,
as the case may be, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
- ---------
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to
Section 313 of the Trust Indenture Act at the times and in the manner provided
pursuant to Section 313(c) of the Trust Indenture Act.
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(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to Section 314 of the Trust Indenture Act
at the times and in the manner provided pursuant to such Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and the Company shall not permit any Person to consolidate with
or merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium and interest on all
the Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time
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of such transaction, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company or
such successor Person, as the case may be, shall take such steps as shall
be necessary effectively to secure the Securities equally and ratably with
(or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto for any of the
following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
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(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities pursuant to the requirements of Section
1008 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 61l(b); or
(9) to provide for the appointment of an Authenticating Agent or
Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of
such series issued upon original issue and upon exchange, registration of
transfer or partial redemption of Securities of such series; or
(10) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with
53
respect to matters or questions arising under this Indenture, provided
--------
such action pursuant to this Clause (10) shall not adversely affect
the interests of the Holders of Securities of any series in any
material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
--------- --------
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Security or any other Security that would be
due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the coin
or currency in which, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to require
-------- -------
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1010, or the
deletion of this proviso, in accordance with the requirements of Sections
61l(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect
54
to such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental Indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental Indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
55
ARTICLE X
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
-------- -------
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at anytime act as its own paying Agent with respect to
any series of Securities, it will, on or before each due date of the principal
of or any premium or interest on any of the Securities of that series, segregate
and hold in trust for the benefit of the persons entitled thereto a sum
sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, on or prior to each due date of the principal of or any
56
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will (i) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter;
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
-------- -------
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in
57
default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
-------- -------
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
--------- -------
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, however, that the
--------- --------
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 1008. Limitation Upon Mortgages and Liens of the Company.
The Company covenants and agrees as follows for the benefit of those series
of Securities as to which, pursuant to Section 301 in accordance with the
establishing Board Resolution and Officers' Certificate or indenture
supplemental hereto, it is provided that such series shall have the benefit of
this Section:
58
The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, create or suffer to be created or to exist, any Lien
(other than Permitted Liens) upon any of its Property, unless it has made or
will make effective provision whereby the Outstanding Securities will be secured
by such Lien equally and ratably with (or prior to) all other indebtedness of
the Company or such Restricted Subsidiary secured by such Lien for so long as
any such other indebtedness of the Company or such Restricted Subsidiary shall
be so secured. Notwithstanding the foregoing, the Company may, and may permit
any Restricted Subsidiary to, issue, assume, guarantee, or permit to exist
indebtedness secured by Liens on Property that are not Permitted Liens without
equally and ratably securing the Outstanding Securities, so long as the sum of
all such indebtedness then being issued, assumed, or guaranteed together with
all remaining outstanding indebtedness secured by a Lien that is not a Permitted
Lien together with the Attributable Debt in respect of any Sale and Leaseback
Transaction does not exceed 15% of the Company's Consolidated Net Tangible
Assets.
SECTION 1009. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 1008 with respect to the Securities
of any series if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of such series shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or in another manner specified as contemplated by Section 301
for such Securities. In case of any redemption at the election of the Company of
less than all the Securities of any series
59
(including any such redemption affecting only a single Security), the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all of the Securities of such series and of a specified tenor are to be redeemed
or unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 45 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
a portion of the principal amount of any Security of such series, provided
--------
that the unredeemed portion of the principal amount of any Security shall be in
an authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all of the Securities of such
series and of a specified tenor are to be redeemed (unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 45 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part, the
unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
60
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal amount of
the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case,
and
(7) the "CUSIP" number, if any, of the Securities.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
61
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
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contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in
62
excess of such minimum amount provided for by the terms of such Securities is
herein referred to as an "optional sinking fund payment". If provided for by
the terms of any Securities, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have not been
--------
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price, as specified in the Securities
so to be redeemed, for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103. The Trustee shall cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1106 and 1107.
63
ARTICLE XIII
DEFEASANCE
SECTION 1301. Applicability of Article: Company's Option to Effect
Defeasance.
If pursuant to Section 301 provision is made for either or both of (a)
defeasance of any Securities under Section 1302 and (b) covenant defeasance of
any Securities under Section 1303, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
Thirteen, shall be applicable to such Securities, and the Company may at its
option by Board Resolution or in another manner specified as contemplated by
Section 301 for such Securities, at any time, elect to have either Section 1302
(if applicable) or Section 1303 (if applicable) be applied to such Securities
upon compliance with the conditions set forth in this Article Thirteen.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of the option to have this Section applied to
any Securities or any series of Securities, the Company shall be deemed to have
been discharged from its obligations with respect to such Securities as provided
in this Section on and after the date the conditions set forth in Section 1304
are satisfied (hereinafter, "Defeasance"). For this purpose, such Defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute on
Company Order proper instruments acknowledging the same), subject to the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Securities to receive, solely from
the trust fund described in Section 1304 and as more fully set forth in such
Section, payments in respect of the principal of and any premium and interest on
such Securities when such payments are due, (B) the Company's obligations with
respect to such Securities under Sections 304, 305, 306, 1002 and 1003, (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (D)
this Article Thirteen. Subject to compliance with this Article Thirteen, the
Company may exercise its option to have this Section applied to any Securities
notwithstanding the prior exercise of its option to have Section 1303 applied
to such Securities.
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of its option to have this Section applied to
any Securities or any series of Securities, (1) the Company shall be released
from its obligations under Section 801(3), Sections 1006 through 1008 inclusive,
and any covenants provided pursuant to Section 301(18), 901(2) or 901(7) for the
benefit of the Holders of such Securities and (2) the occurrence of any event
specified in Sections 501(4) (with respect to any of Section 801(3), Sections
1006
64
through 1008 inclusive, and any such covenants provided pursuant to Section
301(18), 901(2) or 901(7)), 501(5) and 501(8) shall be deemed not to be or
result in an Event of Default in each case with respect to such Securities as
provided in this Section on and after the date the conditions set forth in
Section 1304 are satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that, with respect to such Securities,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such specified Section (to
the extent so specified in the case of Section 501(4)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance.
The following shall be the conditions to application of Section 1302 or
Section 1303 to any Securities or any series of Securities:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article Thirteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, money in an amount, or (C) a combination thereof,
in each case sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied
by the Trustee (or any such other qualifying trustee) to pay and discharge,
the principal of and any premium and interest on such Securities on the
respective Stated Maturities in accordance with the terms of this Indenture
and such Securities. For this purpose, "U.S. Government Obligations" means
(x) any security which is (i) a direct obligation of the United States of
America for the payment of which its full faith and credit is pledged or
(ii) an obligation of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America the payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i) or
(ii), is not callable or redeemable at the option of the issuer thereof,
and (y) any depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any U.S.
Government Obligation which is specified in Clause (x) above and held by
such bank for the account of the holder of such depositary receipt, or
with respect to any specific payment of principal of or interest on any
U.S. Government Obligation which is so specified and held, provided that
--------
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
65
depository receipt from any amount received by the custodian in respect
of the U.S. Government Obligation or the specific payment of principal of
or interest evidenced by such depository receipt.
(2) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, the Company shall have delivered to
the Trustee an Opinion of Counsel stating that (A) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling
or (B) since the date of this instrument, there has been a change in the
applicable Federal income tax law, in either case (A) or (B) to the effect
that, and based thereon such opinion shall confirm that, the Holders of
such Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as
would be the case if such deposit, Defeasance and discharge were not to
occur.
(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that the Holders of such
Securities will not recognize gain or loss for Federal income tax purposes
as a result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case
if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 501(6) and
(7), at any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied
until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning of
such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
66
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be
registered under such Act or exempt from registration thereunder.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 1305. Deposited Money and U.S. Government Obligations to be Held
in Trust; Miscellaneous.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section and
Section 1306, the Trustee and any such other Trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities,
of all sums due and to become due thereon in respect of principal and any
premium and interest, but money so held in trust need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1304 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Thirteen with respect to any Securities by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then
67
the obligations under this Indenture and such Securities from which the Company
has been discharged or released pursuant to Section 1302 or 1303 shall be
revived and reinstated as though no deposit had occurred pursuant to this
Article Thirteen with respect to such Securities, until such time as the
Trustee or Paying Agent is permitted to apply all money held in trust pursuant
to Section 1305 with respect to such Securities in accordance with this Article
Thirteen; provided, however, that if the Company makes any payment of principal
-------- -------
of or any premium or interest on any such Security following such reinstatement
of its obligations, the Company shall be subrogated to the rights (if any) of
the Holders of such Securities to receive such payment from the money so held
in trust.
ARTICLE XIV
HOLDERS' MEETINGS
SECTION 1401. Purposes for Which Meetings May be Called.
A meeting of Holders of any series of Outstanding Securities may be called
at any time and from time to time pursuant to the provisions of this Article
Fourteen for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give
any direction to the Trustee, or to waive or consent to the waiving of any
Event of Default hereunder and its consequences, or to take any other
action authorized to be taken by Holders pursuant to any of the provisions
of Article Five;
(2) to remove the Trustee or appoint a successor trustee, pursuant
to the provisions of Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Sections 901 and 902; or
(4) to take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of the
Securities under any other provision of this Indenture or under applicable
law.
SECTION 1402. Manner of Calling Meetings.
The Trustee may at any time call a meeting of Holders to take any action
specified in Section 1401. Notice of every meeting of such Holders, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed by the Trustee to the
Company and to such Holders not less than 20 nor more than 60 days prior
68
to the date fixed for the meeting. Any meeting shall be valid without notice
if all of the Holders of such series of Outstanding Securities are present in
person or by proxy, or if notice is waived before or after the meeting by such
Holders of such series of Outstanding Securities, and if the Company and the
Trustee are either present or have, before or after the meeting, waived notice.
SECTION 1403. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a resolution of its Board of
Directors, or the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities of the applicable series or, in the event the meeting
relates to the Holders of more than one series of Outstanding Securities, the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of such series, shall have requested the Trustee to call a meeting of
Holders to take any action authorized in Section 1401 by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have mailed notice of such meeting within 20 days after
receipt of such request, then the Company or such Holders in the amount above
specified may determine the time and the place in Overland Park, Kansas for
such meeting and may call such meeting to take any action authorized in Section
1401, by mailing notice thereof as provided in Section 1402.
SECTION 1404. Who May Attend and Vote at Meeting.
To be entitled to vote at any meeting of Holders a person shall (a) be a
Holder of one or more Securities with respect to which the meeting is being
held, as of the record date for such meeting (or, if no record date is set, as
of the date of such meeting), or (b) be a person appointed by an instrument in
writing as proxy by such Holder of one or more Securities. The only persons who
shall be entitled to be present or to speak at any meeting of Holders shall be
the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
At any meeting each Holder or proxy shall be entitled to one vote for each
$1,000 principal amount of Outstanding Securities held or represented by him.
SECTION 1405. Regulations May be Made by Trustee.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders, in regard to proof of the holding of Securities and of the appointment
of proxies, and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the meeting
as it shall deem appropriate.
69
SECTION 1406. Evidence of Actions by Holders.
Whenever the Holders of a specified percentage in aggregate principal
amount of the Securities may take any action, the fact that the Holders of such
percentage have acted may be evidence by (a) instruments of similar tenor
executed by Holders in person or by attorney or written proxy, or (b) the
Holders voting in favor thereof at any meeting of Holders called and held in
accordance with the provisions of the rules for meetings of Holders, or (c) by a
combination thereof. The Trustee may require proof of any matter concerning the
execution of any instrument by a Holder or his attorney or proxy as it shall
deem necessary.
SECTION 1407. Exercise of Rights of Trustee and Holders Not to be Hindered
or Delayed.
Nothing in this Article Fourteen contained shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to the Holders under any of the provisions of this Indenture or of
the Securities.
70
IN WITNESS WHEREOF,the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed, all as of
the day and year first above written.
SPRINT CORPORATION
By /s/ Don A. Jensen
Attest: Don A. Jensen
/s/ Michael T. Hyde Vice President
Michael T. Hyde
Assistant Secretary
BANK ONE, N.A.
By /s/ David B. Knox
Attest: David B. Knox
/s/ Jeffery L. Eubank Authorized Signer
Jeffery L. Eubank
Authorized Signer
71
STATE OF KANSAS )
) ss.:
COUNTY OF JOHNSON )
On the 15th day of October, 1998 , before me personally came Don A. Jensen,
to me known, who, being by me duly sworn, did depose and say that he is Vice
President of Sprint Corporation, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
/s/ Lora Burton
Notary Public
My Commission Expires:
10/31/98
72
STATE OF OHIO )
) ss.:
COUNTY OF FRANKLIN)
On the 15th day of October, 1998, before me personally came David B. Knox,
to me known, who, being by me duly sworn, did depose and say that he is an
authorized signer of Bank One, N.A., one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/ Meletha Dawson
Notary Public
My Commission Expires:
10/24/98
<PAGE>
Exhibit 4(b)
================================================================================
SPRINT CAPITAL CORPORATION
AND
SPRINT CORPORATION
TO
BANK ONE, N.A.
TRUSTEE
--------------
INDENTURE
Dated as of October 1, 1998
--------------
===============================================================================
SPRINT CAPITAL CORPORATION AND SPRINT CORPORATION
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
(S)310(a)(1) 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 608
610
(S)311(a) 613
(b) 613
(S)312(a) 701
702
(b) 702
(c) 702
(S)313(a) 703
(b) 703
(c) 703
(d) 703
(S)314(a) 704
(a)(4) 101
1004
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
(S)315(a) 601
(b) 602
(c) 601
(d) 601
(e) 514
(S)316(a) 101
(a)(1)(A) 502
512
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
(c) 104
(S)317(a)(1) 503
(a)(2) 504
(b) 1003
(S)318(a) 107
- -------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
Page
Recitals of the Company and the Guarantor
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.........................................
Section 102. Compliance Certificates and Opinions................
Section 103. Form of Documents Delivered to Trustee..............
Section 104. Acts of Holders; Record Dates.......................
Section 105. Notices, Etc., to Trustee, Company or Guarantor.....
Section 106. Notice to Holders; Waiver...........................
Section 107. Conflict with Trust Indenture Act...................
Section 108. Effect of Headings and Table of Contents............
Section 109. Successors and Assigns..............................
Section 110. Separability Clause.................................
Section 111. Benefits of Indenture...............................
Section 112. Governing Law.......................................
Section 113. Legal Holidays......................................
Section 114. Counterparts........................................
ARTICLE II FORMS OF SECURITIES AND GUARANTEES
Section 201. Forms Generally.....................................
Section 202. Form of Face of Security............................
Section 203. Form of Reverse of Security.........................
Section 204. Form of Guarantee...................................
Section 205. Form of Legend for Global Securities................
Section 206. Form of Trustee's Certificate of Authentication.....
Section 207. CUSIP Numbers.......................................
i
ARTICLE III THE SECURITIES AND GUARANTEES
Section 301. Amount Unlimited; Issuable in Series................
Section 302. Denominations.......................................
Section 303. Execution, Authentication, Delivery and Dating......
Section 304. Temporary Securities................................
Section 305. Registration, Registration of Transfer and Exchange.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities....
Section 307. Payment of Interest; Interest Rights Preserved......
Section 308. Persons Deemed Owners................................
Section 309. Cancellation.........................................
Section 310. Computation of Interest..............................
Section 311. Unconditional Guarantee..............................
ARTICLE IV SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture..............
Section 402. Application of Trust Money...........................
ARTICLE V REMEDIES
Section 501. Events of Default....................................
Section 502. Acceleration of Maturity, Rescission and Annulment...
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee...........................................
Section 504. Trustee May File Proofs of Claim.....................
Section 505. Trustee May Enforce Claims Without Possession of
Securities...........................................
Section 506. Application of Money Collected.......................
Section 507. Limitation on Suits..................................
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.................................
Section 509. Restoration of Rights and Remedies...................
Section 510. Rights and Remedies Cumulative.......................
Section 511. Delay or Omission Not Waiver.........................
Section 512. Control by Holders...................................
ii
Section 513. Waiver of Past Defaults..............................
Section 514. Undertaking for Costs................................
Section 515. Waiver of Usury, Stay or Extension Laws..............
ARTICLE VI THE TRUSTEE
Section 601. Certain Duties and Responsibilities..................
Section 602. Notice of Defaults...................................
Section 603. Certain Rights of Trustee............................
Section 604. Not Responsible for Recitals or Issuance of
Securities...........................................
Section 605. May Hold Securities..................................
Section 606. Money Held in Trust..................................
Section 607. Compensation and Reimbursement.......................
Section 608. Conflicting Interests................................
Section 609. Corporate Trustee Required; Eligibility..............
Section 610. Resignation and Removal; Appointment of Successor....
Section 611. Acceptance of Appointment by Successor...............
Section 612. Merger, Conversion, Consolidation or Succession to
Business.............................................
Section 613. Preferential Collection of Claims Against Company
or Guarantor.........................................
ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses
of Holders..........................................
Section 702. Preservation of Information; Communications to
Holders.............................................
Section 703. Reports by Trustee..................................
Section 704. Reports by Guarantor................................
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company or Guarantor May Consolidate, Etc., Only on
Certain Terms.......................................
Section 802. Successor Substituted...............................
iii
ARTICLE IX SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders...
Section 902. Supplemental Indentures with Consent of Holders......
Section 903. Execution of Supplemental Indentures.................
Section 904. Effect of Supplemental Indentures....................
Section 905. Conformity with Trust Indenture Act..................
Section 906. Reference in Securities to Supplemental Indentures...
ARTICLE X COVENANTS
Section 1001. Payment of Principal, Premium and Interest..........
Section 1002. Maintenance of Office or Agency.....................
Section 1003. Money for Securities Payments to Be Held in Trust...
Section 1004. Statement by Officers of the Company and the
Guarantor as to Default.............................
Section 1005. Existence of the Company and the Guarantor..........
Section 1006. Maintenance of Properties of the Company and the
Guarantor...........................................
Section 1007. Payment of Taxes and Other Claims by the Company....
Section 1008. Limitation Upon Mortgages and Liens of the Company..
Section 1009. Limitation On Company Prior Indebtedness............
Section 1010. Waiver of Certain Covenants of the Company..........
Section 1011. Payment of Taxes and Other Claims by the Guarantor..
Section 1012. Limitation Upon Mortgages and Liens of the
Guarantor...........................................
Section 1013. Waiver of Certain Covenants of the Guarantor........
Section 1014. Exemption Under Investment Company Act..............
ARTICLE XIREDEMPTION OF SECURITIES
Section 1101. Applicability of Article............................
Section 1102. Election to Redeem; Notice to Trustee...............
Section 1103. Selection by Trustee of Securities to Be Redeemed...
Section 1104. Notice of Redemption................................
Section 1105. Deposit of Redemption Price........................
iv
Section 1106. Securities Payable on Redemption Date..............
Section 1107. Securities Redeemed in Part........................
ARTICLE XII SINKING FUNDS
Section 1201. Applicability of Article...........................
Section 1202. Satisfaction of Sinking Fund Payments with
Securities.........................................
Section 1203. Redemption of Securities for Sinking Fund..........
ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Option to Effect Defeasance or Covenant Defeasance.
Section 1302. Defeasance and Discharge...........................
Section 1303. Covenant Defeasance................................
Section 1304. Conditions to Defeasance or Covenant Defeasance....
Section 1305. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous Provisions......
Section 1306. Reinstatement......................................
ARTICLE XI SHAREHOLDERS' MEETINGS
Section 1401. Purposes for Which Meetings May be Called..........
Section 1402. Manner of Calling Meetings.........................
Section 1403. Call of Meetings by Company or Holders.............
Section 1404. Who May Attend and Vote at Meeting.................
Section 1405. Regulations May be Made by Trustee.................
Section 1406. Evidence of Actions by Holders.....................
Section 1407. Exercise of Rights of Trustee and Holders Not to
be Hindered or Delayed.............................
v
INDENTURE, dated as of October 1, 1998, among SPRINT CAPITAL CORPORATION, a
Delaware corporation (herein called the "Company"), having its principal office
at 2330 Shawnee Mission Parkway, Westwood, Kansas, SPRINT CORPORATION, a Kansas
corporation (herein called the "Guarantor"), having its principal office at 2330
Shawnee Mission Parkway, Westwood, Kansas, and Bank One, N.A., a national
banking association, as Trustee (herein called the "Trustee").
Recitals of the Company and the Guarantor
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
The Guarantor has duly authorized the execution and delivery of this
Indenture and deems it appropriate from time to time to issue its guarantees of
the Securities on the terms herein provided (the "Guarantees").
All things necessary to make this Indenture a valid agreement of the
Company and the Guarantor, in accordance with its terms, have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
2
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation;
(4) in the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including" and the
words "to" and "until" each mean "to but excluding";
(5) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
(6) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, as to any Sale and Leaseback Transaction under
which any Person is at the time liable, at any date as of which the amount
thereof is to be determined, the total net amount of rent required to be paid by
such Person under such lease during the remaining term thereof (excluding any
subsequent renewal or other extension options held by the lessee), discounted
from the respective due dates thereof to such date of determination at the rate
of interest per annum implicit in the terms of such lease, as determined in good
faith by the Guarantor, compounded annually. The net amount of rent required to
be paid under any such lease for any such period shall be the amount of rent
payable by the lessee with respect to such period, after excluding amounts
required to be paid on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges and contingent rents.
"Authenticating Agent" means any Person authorized by the Trustee to act on
behalf of the Trustee to authenticate Securities of one or more series.
"Board of Directors" means either the board of directors of the Company or
the Guarantor, as the case may be, or any duly authorized committee of that
board.
3
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company or the Guarantor, as the case may be,
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Lease Obligations" means indebtedness represented by obligations
under a lease that is required to be capitalized for financial reporting
purposes in accordance with generally accepted accounting principles and the
amount of such indebtedness shall be the capitalized amount of such obligations
determined in accordance with generally accepted accounting principles
consistently applied.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order", "Guarantor Request" or "Guarantor
Order" mean, respectively, a written request or order signed in the name of the
Company or the Guarantor by its Chairman of the Board, its Vice Chairman of the
Board, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Net Tangible Assets" means the consolidated total assets of
the Guarantor and its Subsidiaries as reflected in the Guarantor' most recent
balance sheet preceding the date of determination prepared in accordance with
generally accepted accounting principles consistently applied, less (i) current
liabilities (excluding current maturities of long-term debt and Capital Lease
Obligations) and (ii) goodwill, tradenames, trademarks, patents, minority
interests of others, unamortized debt discount and expense and other like
intangible assets, (excluding any investments in permits or licenses issued,
granted or approved by the Federal Communications Commission or any successor
thereto).
"Corporate Trust Office" means the principal office of the Trustee in
Columbus, Ohio at which at any particular time its corporate trust business
shall be administered, which office at the date of execution of this Indenture
is located at 100 East Broad Street, Columbus, Ohio 43215, Attention: Corporate
Trust Services.
4
"Corporation" means a corporation, association, joint-stock company or
business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Funded Debt" means (i) all indebtedness which by its terms matures more
than 12 months from the creation, extension or renewal thereof or which is
extendible or renewable at the option of the obligor on such indebtedness to a
time more than 12 months after its creation, extension or renewal, and (ii) all
guarantees, direct or indirect, of indebtedness of others which mature more than
12 months from the date of guarantee thereof or which are extendible or
renewable at the option of the obligor to a time more than 12 months after the
date of guarantee, except guarantees arising in connection with swap obligations
including obligations of any person pursuant to any interest rate or currency
swap agreement, interest rate cap, collar or floor agreement or other similar
agreement or arrangement or the sale, discount, guarantee or pledge of notes,
chattel mortgages, leases, accounts receivable, trade acceptances and other
paper arising, in the ordinary course of business, out of installment or
conditional sales to or by, or transactions involving title retention with,
distributors, dealers or other customers, of merchandise, equipment or services.
The Company shall be deemed to have assumed any Funded Debt secured by any
mortgage, pledge or other lien, or any title retention agreement, upon any of
its property or assets whether or not it has actually done so.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 205 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Guarantee" means the agreement of the Guarantor, in substantially the form
set forth in Section 204 hereof, to be endorsed on the Securities authenticated
and delivered hereunder.
5
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Lien" means, with respect to any Property of any Person, any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement or zoning restriction, encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such Property including any Capital
Lease Obligation, conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing or any Sale and
Leaseback Transaction.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in Section
501(4) or 501(5).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company, or of the Guarantor in the case of the certificate of the
Guarantor, and delivered to the Trustee. One of the officers signing
6
an Officers' Certificate given pursuant to Section 1004 on behalf of the Company
or the Guarantor shall be its principal executive, financial or accounting
officer.
"Opinion of Counsel" means a written opinion of counsel, for the Company if
such opinion is to be delivered on behalf of the Company, or for the Guarantor
if such opinion is to be delivered on behalf of the Guarantor, who may be an
employee of or counsel for the Company or the Guarantor, as the case may be, and
who shall be reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made;
(iii) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
7
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company, the Guarantor or any
other obligor upon the Securities or any Affiliate of the Company, the Guarantor
or of such other obligor.
"Outstanding", when used with respect to Guarantees, means the Guarantees
of Outstanding Securities.
"Participant" has the meaning specified in Section 205.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Permitted Liens" means (i) Liens existing on the date hereof; (ii) Liens
on Property existing at the time of acquisition thereof or to secure the payment
of all or any part of the purchase price thereof or to secure any indebtedness
incurred prior to, at the time of or within 270 days after the acquisition of
such Property for the purpose of financing all or any part of the purchase price
thereof; (iii) Liens securing indebtedness owing by a Restricted Subsidiary to
the Guarantor or any wholly-owned Subsidiary of the Guarantor; (iv) Liens on
Property of any entity, or on the stock, indebtedness or other obligations of
such entity, existing at the time (a) such entity becomes a Restricted
Subsidiary, (b) such entity is merged into or consolidated with the Guarantor or
a Restricted Subsidiary or (c) the Guarantor or a Restricted Subsidiary acquires
all or substantially all of the assets of such entity; provided that no such
Lien extends to any other Property of the Guarantor or any other Restricted
Subsidiary; (v) Liens on Property to secure any indebtedness incurred to provide
funds for all or any part of the cost of development of or improvements to such
Property; (vi) Liens on the Property of the Guarantor or any of its Restricted
Subsidiaries securing (a) nondelinquent performance of bids or contracts (other
than for borrowed money, obtaining of advances or credit or the securing of
debt), (b) contingent obligations on surety and appeal bonds and (c) other
nondelinquent obligations of a like nature, in each case, incurred in the
ordinary course of business; (vii) Liens securing Capital Lease Obligations,
provided that (a) any such Lien attaches to the Property within 270 days after
the acquisition thereof and (b) such Lien attaches solely to the Property so
acquired; (viii) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds, provided that such
8
deposit account is not a dedicated cash collateral account and is not subject to
restrictions against access by the Guarantor or such Restricted Subsidiary, as
the case may be, in excess of those set forth by regulations promulgated by the
Federal Reserve Board and such deposit account is not intended by the Guarantor
or such Restricted Subsidiary to provide collateral to the depository
institution; (ix) pledges or deposits under worker's compensation laws,
unemployment insurance laws or similar legislation; (x) statutory and tax Liens
for sums not yet due or delinquent or which are being contested or appealed in
good faith by appropriate proceedings; (xi) Liens arising solely by operation of
law, such as mechanics', materialmen's, warehouseman's and carriers' Liens and
Liens of landlords or of mortgages of landlords, on fixtures and movable
Property located on premises leased in the ordinary course of business; (xii)
Liens on personal Property, other than shares of stock or indebtedness of any
Restricted Subsidiary, to secure loans maturing not more than one year from the
date of the creation thereof and on accounts receivable associated with a
receivables financing program of the Guarantor or any of its Restricted
Subsidiaries; (xiii) any Lien created by or resulting from litigation or other
proceeding against, or upon property of, the Guarantor or any Restricted
Subsidiary, or any lien for workmen's compensation awards or similar awards, so
long as the finality of such judgment or award is being contested and execution
thereon is stayed or such Lien relates to a final unappealable judgment which is
satisfied within 30 days of such judgment or any Lien incurred by the Guarantor
or any Restricted Subsidiary for the purpose of obtaining a stay or discharge in
the course of any litigation or other proceeding; provided that such judgment or
award does not constitute an Event of Default under clause (5) of Section 501;
(xiv) Liens on the real property of the Guarantor or a Restricted Subsidiary
which constitute minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, rights of way, sewers, electric lines,
telegraph and telephone lines and other similar purposes, or zoning or other
restrictions as to the use of such real property, provided that all of the liens
referred to in this clause (xiv) in the aggregate do not at any time materially
detract from the value of such real property or materially impair its use in the
operation of the business of the Guarantor and its Subsidiaries; (xv) Liens on
Property of the Guarantor or a Restricted Subsidiary securing indebtedness or
other obligations issued by the United States of America or any State thereof or
any department, agency or instrumentality or political subdivision thereof, or
by any other country or any political subdivision thereof, for the purpose of
financing all or any part of the purchase price of (or, in the case of real
property, the cost of construction on or improvement of) any property or assets
subject to such Liens (including, but not limited to, Liens incurred in
connection with pollution control, industrial revenue or similar financings);
and (xvi) any renewal, extension or replacement (in whole or in part) of any
Lien permitted pursuant to exceptions (i), (ii), (iv), (v), (vii) and (xv) above
or of any indebtedness secured thereby, provided that such extension, renewal or
replacement Lien shall be limited to all or any part of the same Property that
secured the Lien extended, renewed or replaced (plus improvements on such
Property) and the principal amount of indebtedness secured thereby and not
otherwise authorized by clauses (i), (ii), (iv), (v), (vii) and (xv) shall not
exceed the principal amount of indebtedness plus any premium or fee payable in
connection with any such renewal, extension or replacement so secured at the
time of such renewal, extension or replacement.
9
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Property" means any asset or property of a Person, whether now owned or
hereafter acquired, or any interest therein or any income or profits therefrom,
including capital stock and indebtedness of Subsidiaries.
"Receivables Subsidiary" means a special purpose wholly-owned Subsidiary
created in connection with any transactions that may be entered into by the
Guarantor or any of its Subsidiaries pursuant to which the Guarantor or any of
its Subsidiaries may sell, convey, grant a security interest in or otherwise
transfer undivided percentage interests in its receivables.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary of the Guarantor (other than a
Receivables Subsidiary or Sprint Capital) if (i) such Subsidiary has
substantially all of its Property in the
10
United States (other than its territories and possessions) and (ii) at the
end of the most recent fiscal quarter of the Guarantor preceding the date of
determination, the aggregate amount, determined in accordance with generally
accepted accounting principles consistently applied, of securities of, loans
and advances to, and other investments in, such Subsidiary held by the
Guarantor and its other Subsidiaries, less any securities of, loans and advances
to, and other investments in the Guarantor and the Guarantor's other
Subsidiaries held by such Subsidiary or any of its Subsidiaries, exceeded 15%
of the Guarantor's Consolidated Net Tangible Assets.
"Sale and Leaseback Transaction" means, with respect to the Guarantor or a
Restricted Subsidiary, any direct or indirect arrangement pursuant to which
Property is sold or transferred by the Guarantor or such Restricted Subsidiary,
as the case may be, and is thereafter leased back from the purchaser or
transferee thereof by the Guarantor or such Restricted Subsidiary, as the case
may be.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation, partnership, limited liability company or
other business organization, whether or not incorporated, a majority of the
Voting Securities of which are owned, directly or indirectly, by the Guarantor.
"Trustee" means the Person named as the "Trustee"in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act
11
of 1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Company, the Guarantor or
the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
"Voting Securities" of a Subsidiary means the stock or other ownership or
equity interests, of whatever class or classes, the holders of which ordinarily
have the power to vote for the election of the members of the board of
directors, managers or trustees of such Subsidiary (other than stock or other
ownership or equity interests having such power only by reason of the happening
of a contingency).
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or the Guarantor, as the
case may be, to the Trustee to take any action under any provision of this
Indenture, the Company or the Guarantor, as the case may be, shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company or the
Guarantor, or an Opinion of Counsel, if to be given by counsel, and shall comply
with the requirements of the Trust Indenture Act and any other requirements set
forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
12
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the Guarantor,
as the case may be, may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
of counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company or the Guarantor, as the case may be, stating that the information with
respect to such factual matters is in the possession of the Company or the
Guarantor, as the case may be, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company and
the Guarantor. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee, the Company and the Guarantor, if made in the manner provided in
this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such
13
execution is by a signer acting in a capacity other than his individual capacity
such certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, the Company or the
Guarantor in reliance thereon, whether or not notation of such action is made
upon such Security.
The Company or the Guarantor may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities of any series
entitled to give, make or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by this Indenture
to be given, made or taken by Holders of Securities of such series, provided
that the Company or the Guarantor may not set a record date for, and the
provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other
Holders, shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Company or the Guarantor from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company or the Guarantor, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section
106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other
14
Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing
in this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the
Company's expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Company and
the Guarantor in writing and to each Holder of Securities of the relevant
series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other parties hereto in writing,
and to each Holder of Securities of the relevant series in the manner set forth
in Section 106, on or prior to the existing Expiration Date. If an Expiration
Date is not designated with respect to any record date set pursuant to this
Section, the party hereto which set such record date shall be deemed to have
initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee, Company or Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or the Guarantor shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee by first-class mail, postage
prepaid, at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed,
15
first-class postage prepaid, to the Company addressed to it at the address
of its principal office specified in the first paragraph of this instrument
Attention: Corporate Secretary,or at any other address previously furnished
in writing to the Trustee by the Company, or
(3) the Guarantor by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Guarantor
addressed to it at the address of its principal office specified in the
first paragraph of this instrument, Attention: Corporate Secretary, or at
any other address previously furnished in writing to the Trustee by the
Guarantor.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
16
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company or the
Guarantor shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture, in the Securities or in the Guarantees, express
or implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture, the Securities and the Guarantees endorsed therein shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to principles of conflicts of law.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity.
SECTION 114. Counterparts.
This 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.
17
ARTICLE II
FORMS OF SECURITIES AND GUARANTEES
SECTION 201. Forms Generally.
The Securities of each series and the related Guarantees shall be in
substantially the form set forth in this Article, or in such other form as shall
be established by or pursuant to a Board Resolution of the Company, in the case
of Securities, or of the Guarantor, in the case of Guarantees, or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or Depositary
therefor or as may, consistently herewith, be determined by the officers
executing such Securities and Guarantees, as evidenced by their execution
thereof. If the form of Securities of any series or the form of the related
Guarantees is established by action taken pursuant to a Board Resolution, a copy
of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company or the Guarantor, as the case may be, and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
......................
............................
CUSIP No.
No. ..... $ ....
Sprint Capital 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 .........., or registered assigns, the
principal sum of ...................................... Dollars on
..................................... [if the Security is to bear interest prior
to Maturity, insert --, and to pay interest thereon from ............. or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on .... and .... in each year, commencing ......, at
the rate of Y% per annum, until the principal hereof is paid or made available
for payment [if applicable, insert --, provided that any principal and premium,
and any such installment of interest, which is overdue shall bear interest at
the rate of
18
... % 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].
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (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 ... or ... (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (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
Securities 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 Securities 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].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of .. % 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. Interest on any overdue
principal or premium shall be payable on demand. [Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ...... % per annum (to the extent that the payment of such interest on
interest shall be legally enforceable), from the date of such demand until the
amount so demanded is paid or made available for payment. Interest on any
overdue interest shall be payable on demand.]]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ............ , in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert --;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register]. Reference is hereby made to
the further provisions of this Security 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,
neither this Security nor the Guarantee endorsed hereon shall be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
19
SPRINT CAPITAL CORPORATION
By
............................................
Attest:
...............
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of October 1, 1998 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), among the Company, Sprint Corporation, a Kansas corporation (herein
called the "Guarantor"), as Guarantor, and Bank One, N.A., as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and 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 Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof [if
applicable, insert --, limited in aggregate principal amount to $ ........... ].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ........... in any year commencing with the year ...... and ending with
the year ...... through operation of the sinking fund for this series at a
Redemption Price equal to 100 % of the principal amount, and (2)] at any time
[if applicable, insert -- on or after................, ........], as a whole or
in part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): If redeemed [if applicable,
insert -- on or before............... , ... %, and if redeemed] during the 12-
month period beginning ............. of the years indicated,
Redemption Redemption
Year Price Year Price
- ---------- ---------- ---- -----
and thereafter at a Redemption Price equal to .. % of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
20
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on .... in any year
commencing with the year .... and ending with the year ....through operation of
the sinking fund for this series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below, and (2) at any time [if applicable, insert-- on or
after ...], as a whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below: If redeemed during the 12-month period beginning.......of the years
indicated,
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ----------------- ---------------------
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company may
not, prior to ...... , redeem any Securities of this series as contemplated by
[if applicable, insert -- Clause (2) of] the preceding paragraph as a part of,
or in anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than ..... % per annum.]
[If applicable, insert-- The sinking fund for this series provides for the
redemption on ...... in each year beginning with the year ...... and ending with
the year ...... of [if applicable, insert -- not less than $ ...... ("mandatory
sinking fund") and not more than] $ ...... aggregate principal amount of
Securities of this series. Securities of this series acquired or redeemed by the
Company otherwise than through [if applicable, insert -- mandatory] sinking fund
payments may be credited against subsequent [if applicable, insert -- mandatory]
sinking fund payments otherwise required to be made [if applicable, insert --,
in the inverse order in which they become due].]
21
[If the Security is subject to redemption of any kind, insert- In the event
of redemption of this Security in part only, a new Security or Securities 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 applicable, insert -- The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to --insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's and the Guarantor's obligations in respect of
the payment of the principal of and premium and interest, if any, on the
Securities of this series shall terminate.]
The Indenture provides that each Holder of a Security is entitled to the
benefits of a Guarantee by the Guarantor of the timely payment of the principal
of, premium, if any, and interest on the Security. The Guarantee endorsed hereon
is an integral part of this Security. 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 Guarantor and the rights of
the Holders of the Securities of each series to be affected under the Indenture
at any time by the Company, the Guarantor and the Trustee with the consent of
the Holders of a majority in principal amount of the Securities at the time
Outstanding of each series to be affected.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 and the
Guarantor with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,whether
or not notation of such consent or waiver is made upon this Security.
22
As provided in and subject to the provisions of the Indenture, the Holder
of this Security 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
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series 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
Securities of this series 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 Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligations of the Company and the
Guarantor, which are absolute and unconditional, to pay the principal of and any
premium and interest on this Security 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 Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security 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 Securities 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 Securities of this series are issuable only in registered form without
coupons in denominations of $ ....... and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities 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 Security for registration of transfer, the
Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Guarantor or the Trustee nor any such agent shall be
affected by notice to the contrary.
23
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204. Form of Guarantee.
GUARANTEE OF SPRINT CORPORATION
FOR VALUE RECEIVED, Sprint Corporation, a corporation duly organized and
existing under the laws of the State of Kansas (the "Guarantor"), hereby
unconditionally guarantees to the Holder of the Security upon which this
Guarantee is endorsed the due and punctual payment of the principal of, premium,
if any, and interest (including interest on any overdue principal and on any
overdue installment of interest) on said Security, [if applicable, insert - and
the due and punctual payment of the sinking fund payments required with respect
to said Security,] when and as the same shall become due and payable, whether at
maturity, by acceleration or redemption or otherwise, according to the terms
thereof and of the Indenture referred to therein.
The Guarantor agrees to determine, at least one business day prior to the
date upon which a payment of principal of, or premium, if any, or interest on
said Security is due and payable, whether the Company has available the funds to
make such payment as the same shall become due and payable. In case of the
failure of the Company punctually to pay any such principal, premium, if any, or
interest, the Guarantor hereby agrees to cause any such payment to be made
punctually when and as the same shall become due and payable, whether at
maturity or otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as
principal and not merely as surety, and shall be unconditional, irrevocable, and
absolute, irrespective of the validity, regularity, or enforceability of said
Security or the Indenture, the absence of any action to enforce the same, any
waiver, modification, consent or indulgence by the Holder of said Security or
the Trustee with respect to any provisions hereof or thereof, the recovery of
any judgment against the Company or any action to enforce the same, or any other
circumstances which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. The Guarantor hereby waives diligence, presentment,
notice of non-payment, demand of payment, any right to require a proceeding
first against the Company, filing of claims with a court in the event of merger,
insolvency or bankruptcy of the Company, protest or notice with respect to the
Security upon which this Guarantee is endorsed or indebtedness evidenced thereby
and all notices and demands to the Company or the Guarantor whatsoever and
covenants that this Guarantee will not be discharged except by complete
performance of the obligations contained in said Security and this Guarantee. In
the event of a default in the payment of principal of, premium, if any, or
interest on said Security [if applicable, insert -- or in the event of a default
in the payment under a sinking fund], the Holder of said Security may institute
legal proceedings directly against the Guarantor to enforce this Guarantee
without first proceeding against the Company.
24
The Guarantor shall be subrogated to all rights of the Holder of said
Security against the Company in respect of any amounts paid by the Guarantor
pursuant to the provisions of this Guarantee; provided, however, that the
Guarantor shall not, without the consent of the Holders of all of the Securities
then Outstanding, 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 Securities [if applicable, insert -- and the sinking
fund payments required with respect thereto] shall have been paid in full or
payment thereof shall have been provided for in accordance with the Indenture.
Notwithstanding anything to the contrary contained herein, if following any
payment of principal, premium, if any, or interest by the Company on said
Security to the Holder of the Security it is determined by a final decision of a
court of competent jurisdiction that such payment shall be avoided by a trustee
in bankruptcy (including any debtor-in-possession) as a preference under 11
U.S.C. Section 547 (or any successor statute) and such payment is paid by such
Holder to such trustee in bankruptcy, then and to the extent of such repayment
the obligations of the Guarantor hereunder shall remain in full force and
effect.
This Guarantee ranks equally with all other unsecured and unsubordinated
obligations of the Guarantor. This Guarantee will remain in full force and
effect until the principal of, premium, if any, and interest on the Security
have been fully paid. As provided in the Indenture, the Guarantor may under
certain circumstances assume all rights and obligations of the Company under the
Indenture with respect to the Security.
This Guarantee shall not be valid or become obligatory for any purpose with
respect to the Security upon which it is endorsed until the certificate of
authentication on said Security shall have been signed by the Trustee .
This Guarantee shall be governed by the laws of the State of New York.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly
executed under its corporate seal.
SPRINT CORPORATION
By___________________________
Attest:
_________________________
25
SECTION 205. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Security may not be exchanged in whole or in part for a
Security Registered, and no Transfer of this Security in whole or in part may be
registered, in the name of any Person other than such Depositary or a nominee
thereof, except in the limited circumstances described in the Indenture.
The Trustee, the Company and the Guarantor may from time to time enter
into, and discontinue, an agreement with a Depositary including a "clearing
agency" registered under Section 17A of the Exchange Act, which is the owner of
the Securities, to establish procedures with respect to the Securities not
inconsistent with the provisions of this Indenture. None of the Company, the
Guarantor or the Trustee will have any responsibility or obligation to the
Depositary, any direct or indirect participants (the "Participants") in the book
entry system of any such Depositary or the Holders of the Securities with
respect to (i) the accuracy of any records maintained by the Depositary or any
Participant; (ii) the payment by the Depositary or by any Participant of any
amount due to any Holder in respect of the principal amount or redemption or
purchase price of, or interest on, any Securities; (iii) the delivery of any
notice by the Depositary or any Participant; (iv) the selection of the Holders
to receive payment in the event of any partial redemption of the Securities; or
(v) any other action taken by the Depositary or any Participant.
SECTION 206. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
Dated:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Bank One, N.A.,
As Trustee
.........................................
Authorized Signer
26
SECTION 207. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE III
THE SECURITIES AND GUARANTEES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution of the Company and, subject to
Section 303, set forth, or determined in the manner provided, in an Officers'
Certificate of the Company, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable;
27
(5) the rate or rates at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any such interest payable on any
Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable if other than the
Corporate Trust Office;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by a Board Resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which any Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be
determined;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and
the manner of determining the equivalent thereof in the currency of the
United States of America for any purpose, including for purposes of the
definition of "Outstanding" in Section 101;
(12) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or the
Holder thereof, in one or more currencies or currency units other than that
or those in which such Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or
interest on such Securities as to which such election is made shall be
payable, the periods within which and the terms and conditions upon which
such election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
28
(13) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(15) if applicable, that the Securities of the series and their
related Guarantees, in whole or any specified part, shall be defeasible
pursuant to Section 1302 or Section 1303 or both such Sections and, if
other than by a Board Resolution, the manner in which any election by the
Company or Guarantor, as the case may be, to defease such Securities and
Guarantees shall be evidenced;
(16) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities,
the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 205 and any
circumstances in addition to or in lieu of those set forth in Clause (2) of
the last paragraph of Section 305 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer
of such Global Security in whole or in part may be registered, in the name
or names of Persons other than the Depositary for such Global Security or a
nominee thereof;
(17) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 502;
(18) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series;
(19) whether the Securities are to be issued with warrants to purchase
other Securities; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
29
The payment of principal and premium, if any, and interest and sinking fund
payments, if any, on or relating to the Securities of each series shall be
unconditionally guaranteed by the Guarantor.
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
At or prior to the issuance of any of the Guarantees, the exact form and
terms of such Guarantees, which shall be in substantially the form set forth in
Section 204 hereof, shall be established by or pursuant to a Board Resolution of
the Guarantor and set forth in an Officers' Certificate of the Guarantor.
SECTION 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by, and the
Guarantees endorsed thereon shall be executed on behalf of the Guarantor by, its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities or the Guarantees may be manual or facsimile. The
seal of the Company and the Guarantor may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities.
Securities or Guarantees bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company or the
Guarantor shall bind the Company or the Guarantor, as the case may be,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
30
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company, with Guarantees endorsed thereon, to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities. If the form or terms of the Securities
of the series or the form of the Guarantee relating thereto have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities or Guarantees has been established
by or pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company, and such Guarantees, when endorsed on
such Securities, all in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company and the Guarantor, respectively, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security, or Guarantee thereof, shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of
31
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 309, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
and the Guarantor may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities having duly executed Guarantees
endorsed thereon, which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities and Guarantees may determine, as evidenced by
their execution of such Securities and Guarantees.
If temporary Securities of any series are issued, the Company and the
Guarantor will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series, the Company and the
Guarantor shall execute and the Trustee shall authenticate and deliver in
exchange therefor one or more definitive Securities having duly executed
Guarantees endorsed thereon of the same series, of any authorized denominations
and of like tenor and aggregate principal amount. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series and tenor
and the Guarantees endorsed thereon.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
32
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, the
Company and the Guarantor shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities having duly executed Guarantees endorsed thereon of the same
series, of any authorized denominations and of like tenor and aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, having duly executed Guarantees endorsed
thereon, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company and
the Guarantor shall execute, and the Trustee shall authenticate and deliver, the
Securities having duly executed Guarantees endorsed thereon which the Holder
making the exchange is entitled to receive.
All Securities and Guarantees issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company and the
Guarantor, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities and Guarantees surrendered upon such
registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof
33
and delivered to such Depositary or a nominee thereof or custodian therefor
and each such Global Security shall constitute a single Security for all
purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified
the Company that it is unwilling or unable to continue as Depositary for
such Global Security or (ii) has ceased to be a clearing agency registered
under the Exchange Act, (B) there shall have occurred and be continuing an
Event of Default with respect to such Global Security or (C) there shall
exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated by
Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued
in exchange for a Global Security or any portion thereof shall be
registered in such names as the Depositary for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1107 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company and
the Guarantor shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security having a duly executed Guarantee endorsed
thereon of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company, the Guarantor and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company, the Guarantor or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company and the Guarantor shall execute
and the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security having a duly executed Guarantee
endorsed thereon of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
34
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security, and the Guarantee endorsed thereon, of any series
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security shall constitute an original additional contractual obligation of the
Company and the Guarantor, respectively, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities and Guarantees of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company or the Guarantor, at their
election in each case, as provided in Clause (1) or (2) below:
(1) The Company or the Guarantor may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company or the Guarantor shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each Security of such series
and the date of the proposed payment, and at the same time the Company or
the Guarantor shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to
35
the Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company and the
Guarantor of such Special Record Date and, in the name and at the expense
of the Company and the Guarantor, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
to be given to each Holder of Securities of such series in the manner
set forth in Section 106, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company or the Guarantor may make payment of any Defaulted
Interest on the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company or the Guarantor to the
Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor
or the Trustee may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of principal of
and any premium and (subject to Section 307) any interest on such Security and
for all other purposes whatsoever, whether or not such Security be overdue, and
none of the Company, the Guarantor, the Trustee or any agent of the Company, the
Guarantor, or the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the
36
Trustee, be delivered to the Trustee and shall be promptly cancelled by it.
The Company or the Guarantor may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company or the Guarantor may have acquired in any manner whatsoever,
and may deliver to the Trustee (or to any other Person for delivery to the
Trustee) for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so delivered
shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order, provided, however, that the Trustee shall not be required to destroy such
cancelled Securities.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
41
SECTION 311. Unconditional Guarantee.
(a) Each Holder of a Security shall have the benefit of the Guarantee in
substantially the form set forth in Section 204. Such Guarantee shall be
endorsed on each Security authenticated and delivered by the Trustee and such
Guarantee shall constitute an integral part of each such Security. Each such
Guarantee shall be signed on behalf of the Guarantor prior to the authentication
of the Security on which it is endorsed, and the delivery of such Security by
the Trustee , after the authentication thereof, shall constitute due delivery of
such Guarantee on behalf of the Guarantor.
(b) The Guarantor may, without the consent of any Holder of a Security,
assume all of the rights and obligations of the Company hereunder with respect
to a series of Securities and under the Securities of such series if, after
giving effect to such assumption, no Event of Default shall have occurred and be
continuing. Upon such an assumption, the Guarantor shall execute a supplemental
indenture evidencing its assumption of all such rights and obligations of the
Company and the Company shall be released from its liabilities hereunder and
under such Securities as obligor thereon.
(c) The Guarantor shall assume all of the rights and obligations of the
Company hereunder with respect to a series of Securities and under the
Securities of such series if, upon a default by the Company in the due and
punctual payment of the principal, premium, if any, or interest on such
Securities, the Guarantor is prevented by any court order or judicial proceeding
from fulfilling its obligations with respect to such series of Securities. Such
assumption shall result in the Securities of such series becoming the direct
obligations of the Guarantor and shall be effected without the consent of the
Holders of the Securities of any series. Upon such an assumption, the Guarantor
shall execute a supplemental indenture evidencing its assumption of
37
all such rights and obligations of the Company, and the Company shall be
released from its liabilities hereunder and under such Securities as obligor
on the Securities of such series.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company and the Guarantor, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(xvii) have become due and payable, or
(xviii) will become due and payable at their Stated Maturity
within one year, or
(xix) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company and the Guarantor,
and the Company or the Guarantor, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose money in an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and any premium and interest to the
date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company or the Guarantor has paid or caused to be paid all other
sums payable hereunder by the Company and the Guarantor; and
(3) the Company and the Guarantor each has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company and the Guarantor to the Trustee under Section 607
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of Clause (1) of this Section, the obligations of the Trustee under Section
402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE V
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
39
(4) default in the performance, or breach, of any covenant or warranty
of the Company or the Guarantor in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of series of Securities other than
that series), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
Company and the Guarantor by the Trustee or to the Company, the Guarantor
and the Trustee by the Holders of at least 10% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note, guarantee or other
evidence of indebtedness for money borrowed by the Company or the Guarantor
(including a default with respect to Securities of any series other than
that series) or any Subsidiary or under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured
or evidenced any indebtedness for money borrowed by the Company or the
Guarantor (including this Indenture) or any Subsidiary, whether such
Indebtedness now exists or shall hereafter be created, which default shall
have resulted in more than $50,000,000 in aggregate principal amount of
such indebtedness becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable, without such
indebtedness having been discharged, or such acceleration having been
rescinded or annulled, within a period of 10 days after there shall have
been given, by registered or certified mail, to the Company and the
Guarantor by the Trustee or to the Company, the Guarantor and the Trustee
by the Holders of at least 10% in principal amount of the Outstanding
Securities of that series a written notice specifying such default and
requiring the Company or the Guarantor to cause such indebtedness to be
discharged or cause such acceleration to be rescinded or annulled and
stating that such notice is a "Notice of Default" hereunder; provided,
however, that, subject to the provisions of Sections 601 and 602, the
Trustee shall not be deemed to have knowledge of such default unless either
(A) a Responsible Officer of the Trustee shall have actual knowledge of
such default or (B) the Trustee shall have received written notice thereof
from the Company, from the Guarantor, from any Holder, from the holder of
any such indebtedness or from the trustee under any such mortgage,
indenture or other instrument; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or 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 Company or the Guarantor a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or the Guarantor
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or the Guarantor
40
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
(7) the commencement by the Company or 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 it
to the entry of a decree or order for relief in respect of the Company or
the Guarantor in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or to 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 it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or
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 the Company or the Guarantor in
furtherance of any such action; or
(8) any other Event of Default provided with respect to Securities of
that series.
SECTION 502. Acceleration of Maturity, Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section
501(6) or 501(7)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company and the Guarantor (and to the Trustee if given by
Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of Default
specified in Section 501(6) or 501(7) with respect to Securities of any series
at the time Outstanding occurs, the principal amount of all the Securities of
that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) shall automatically, and without any declaration
or other action on the part of the Trustee or any Holder, become immediately due
and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal
41
amount of the Outstanding Securities of that series, by written notice to the
Company, the Guarantor and the Trustee, may rescind and annul such declaration
and its consequences if
(1) the Company or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company and the Guarantor covenant that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company and the Guarantor will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal and any premium and interest and, to
the extent that payment of such interest shall be legally enforceable, interest
on any overdue principal and premium and on any overdue interest, at the rate or
rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the
42
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company or the Guarantor
(or any other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities or
the Guarantees may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
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SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 607;
Second: To the payment of the amounts then due and unpaid for principal of
and any premium and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal and any premium and interest, respectively; and
Third: To the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or
44
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Guarantor, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
45
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company or the Guarantor.
46
SECTION 515. Waiver of Usury, Stay or Extension Laws.
Each of the Company and the Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and each of the
Company and the Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series and
if the Trustee has actual knowledge of such default, the Trustee shall give the
Holders of Securities of such series notice of such default as and to the extent
provided by the Trust Indenture Act; provided, however, that in the case of any
default of the character specified in Section 501(4) with respect to Securities
of such series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
47
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company or the Guarantor mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order or
Guarantor Request or Guarantor Order, as the case may be, and any resolution of
the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company and the Guarantor, personally or by
agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein, in the Securities and in the Guarantees,
except the Trustee's certificates of authentication, shall be taken as the
statements of the Company or the Guarantor, as the case may be, and the Trustee
assumes no responsibility for their correctness. The Trustee
48
makes no representations as to the validity or sufficiency of this Indenture,
of the Securities or of the Guarantees. The Trustee shall not be accountable
for the use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other agent
of the Company or the Guarantor, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to Sections 608 and 613,
may otherwise deal with the Company or the Guarantor with the same rights it
would have if it were not Trustee, Paying Agent, Security Registrar or such
other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company or the Guarantor.
SECTION 607. Compensation and Reimbursement.
The Company and the Guarantor agree
(1) to pay to the Trustee from time to time reasonable compensation for all
services rendered by it hereunder as shall be agreed to in writing between the
Company, the Guarantor and the Trustee (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee and its directors, officers, employees and
agents for, and to hold it harmless against, any loss, liability, damage, claim
or expense incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or trusts
hereunder, including, without limitation, reasonable fees and expenses of its
counsel and the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable
49
charges and expenses of its counsel) are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency
or similar law.
The provisions of this Section 607 shall survive the resignation or removal
of the Trustee and the termination of this Indenture. The Trustee shall have a
lien prior to the Securities and Guarantees as to all property and funds held by
it hereunder for any amount owing it pursuant to this Section 607, except with
respect to funds held in trust for the benefit of the Holders of particular
Securities.
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series or a trustee under the Indenture dated as of
October 1, 1998, between the Guarantor and the Trustee.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one
or more other series. Each Trustee shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has a combined capital and surplus
of at least $50,000,000. If any such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee
with respect to the Securities of any series shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Company and the Guarantor.
If the instrument of acceptance by a successor Trustee required by Section 611
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court
50
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee, the Company and
the Guarantor.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or the Guarantor or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or the Guarantor or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Company or the Guarantor by a Board Resolution
may remove the Trustee with respect to all Securities, or (B) subject to Section
514, any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company, the Guarantor and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the successor
Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 611, any Holder who has been a bona
51
fide Holder of a Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and the Guarantor and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company, the Guarantor or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the Guarantor,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that
52
or those series to which the appointment of such successor Trustee relates; but,
on request of the Company, the Guarantor or any successor Trustee, such retiring
Trustee shall, upon payment of its charges relating to the Securities of that or
those series to which the appointment of such successor Trustee relates, duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company and the Guarantor
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company or
Guarantor.
If and when the Trustee shall be or become a creditor of the Company or the
Guarantor (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Company or the Guarantor (or any such other obligor).
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
53
(1) semi-annually, not later than January 1 and July 1 in each year, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of each series as of the preceding
December 15 or June 15, as the case may be, and
(2) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company, the Guarantor and the Trustee that none of the Company, the
Guarantor or the Trustee or any agent of any of them shall be held accountable
by reason of any disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to Section 313
of the Trust Indenture Act at the times and in the manner provided pursuant to
Section 313(c) of the Trust Indenture Act.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company and the
Guarantor. The Company will notify the Trustee when any Securities are listed on
any stock exchange.
SECTION 704. Reports by Guarantor.
The Guarantor shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as may be required
54
pursuant to Section 314 of the Trust Indenture Act at the times and in the
manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee
within 15 days after the same is so required to be filed with the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company or Guarantor May Consolidate, Etc., Only on Certain
Terms.
Neither the Company nor the Guarantor shall consolidate with or merge into
any other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and neither the Company nor the
Guarantor shall permit any Person to consolidate with or merge into the Company
or the Guarantor or convey, transfer or lease its properties and assets
substantially as an entirety to the Company or the Guarantor, unless:
(1) in case the Company or the Guarantor shall consolidate with or
merge into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Person formed by
such consolidation or into which the Company or the Guarantor, as the case
may be, is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company or the Guarantor,
as the case may be, substantially as an entirety shall be a corporation,
partnership or trust, shall be organized and validly existing under the
laws of the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee,
in the case of the Company, the due and punctual payment of the principal
of and any premium and interest on all the Securities and the performance
or observance of every covenant of this Indenture on the part of the
Company to be performed or observed, and, in the case of the Guarantor, all
obligations under the Guarantees and the performance or observance of every
covenant of this Indenture on the part of the Guarantor to be performed or
observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company, the Guarantor
or any Subsidiary as a result of such transaction as having been incurred
by the Company, the Guarantor or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or lapse
of time or both, would become an Event of Default, shall have happened and
be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company or the
Guarantor, as the case may
55
be, would become subject to a mortgage, pledge, lien, security interest or
other encumbrance which would not be permitted by this Indenture, the
Company, the Guarantor or such successor Person, as the case may be, shall
take such steps as shall be necessary effectively to secure the Securities
or the Guarantees, as the case may be, equally and ratably with (or prior
to) all indebtedness secured thereby; and
(4) the Company or the Guarantor, as the case may be, has delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, transfer or lease and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company or the Guarantor with, or merger of
the Company or the Guarantor into, any other Person or any conveyance, transfer
or lease of the properties and assets of the Company or the Guarantor
substantially as an entirety in accordance with Section 801, the successor
Person formed by such consolidation or into which the Company or the Guarantor
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company or the Guarantor, as the case may be, under this Indenture with the same
effect as if such successor Person had been named as the Company or the
Guarantor herein, and thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants under this Indenture
and the Securities or the Guarantees, as the case may be.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, the Guarantor, when authorized by or pursuant to
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto for any of the following
purposes:
(1) to evidence the succession of another Person to the Company or the
Guarantor, as the case may be, and the assumption by any such successor of the
covenants of the Company or the Guarantor, as the case may be, herein and in the
Securities or the Guarantees; or
56
(2) to add to the covenants of the Company or the Guarantor for the benefit
of the Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series) or
to surrender any right or power herein conferred upon the Company or the
Guarantor; or
(3) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such additional Events of Default are
to be for the benefit of less than all series of Securities, stating that such
additional Events of Default are expressly being included solely for the benefit
of such series); or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
in bearer form, registrable or not registrable as to principal, and with or
without interest coupons, or to permit or facilitate the issuance of Securities
in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture
in respect of one or more series of Securities, provided that any such addition,
change or elimination (A) shall neither (i) apply to any Security of any series
created prior to the execution of such supplemental indenture and entitled to
the benefit of such provision nor (ii) modify the rights of the Holder of any
such Security with respect to such provision or (B) shall become effective only
when there is no such Security Outstanding; or
(6) to secure the Securities or the Guarantees pursuant to the requirements
of Section 1008, Section 1012 or otherwise; or
(7) to establish the form or terms of Securities of any series as permitted
by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 611; or
(9) to provide for the appointment of an authenticating agent or agents
with respect to one or more series of Securities which shall be authorized to
act on behalf of the Trustee to authenticate Securities of such series issued
upon original issue and upon exchange, registration of transfer or partial
redemption of Securities of such series; or
(10) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to
57
this Clause (10) shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Guarantor and the Trustee, the Company, when authorized by or pursuant to a
Board Resolution, the Guarantor, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security which would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the coin
or currency in which, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513, Section
1010 or Section 1014, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section,
Section 1010 and Section 1014, or the deletion of this proviso, in
accordance with the requirements of Sections 611 and 901(8), or
(4) modify or affect in any manner adverse to the Holders the terms
and conditions and obligations of the Guarantor in respect of the due and
punctual payment of
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the principal of, premium, if any, or interest or sinking fund payments,
if any, on the Securities.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities with Guarantees of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
58
be prepared and executed by the Company and the Guarantor and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company or the Guarantor in respect of the Securities of that series
and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company and the Guarantor hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming
60
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, on or prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will (1) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Company or the Guarantor may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order or Guarantor Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent, such sums to
be held by the Trustee upon the same trusts as those upon which such sums were
held by the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request (or, if deposited by the Guarantor,
paid to the Guarantor on Guarantor Request), or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company and
the Guarantor for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in
a newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, the
City of New York, notice that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30 days from the date
of such publication, any unclaimed balance of such money then remaining will
be repaid to the Company or the Guarantor, as the case may be.
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SECTION 1004. Statement by Officers of the Company and the Guarantor as to
Default.
The Company and the Guarantor, respectively, will deliver to the Trustee,
within 120 days after the end of each of their respective fiscal years ending
after the date hereof, an Officers' Certificate, stating whether or not to the
best knowledge of the signers thereof the Company or the Guarantor, as the case
may be, is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company or the
Guarantor shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge. The statements in the Officers'
Certificate delivered on behalf of the Guarantor shall relate to both the
Company and the Guarantor.
SECTION 1005. Existence of the Company and the Guarantor.
Subject to Article Eight, the Company and the Guarantor each will do or
cause to be done all things necessary to preserve and keep in full force and
effect their respective existences, rights (charter and statutory) and
franchises; provided, however, that neither the Company nor the Guarantor shall
be required to preserve any such right or franchise if its Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company or the Guarantor, as the case may be, and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 1006. Maintenance of Properties of the Company and the Guarantor.
The Company and the Guarantor will each cause all properties used or useful
in the conduct of their respective businesses or the business of any Subsidiary
to be maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Company or the Guarantor, as the case may be, may be
necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company or the Guarantor from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company or the Guarantor, as the case
may be, desirable in the conduct of its business or the business of any
Subsidiary and not disadvantageous in any material respect to the Holders.
SECTION 1007. Payment of Taxes and Other Claims by the Company.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any of its Subsidiaries or upon
the income, profits or property of the Company or any such
62
Subsidiary, and (2) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a lien upon the property of the Company or any
such Subsidiary; provided, however, that the Company shall not be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
SECTION 1008. Limitation Upon Mortgages and Liens of the Company.
The Company covenants and agrees as follows for the benefit of those series
of Securities as to which, pursuant to Section 301 in accordance with the
establishing Board Resolution and Officers' Certificate or indenture
supplemental hereto, it is provided that such series shall have the benefit of
this Section: The Company will not create, assume or suffer to exist any Lien
upon any of its Property without making effective provision (and the Company
covenants that in such case it will make or cause to be made effective
provision) whereby the Outstanding Securities and any other indebtedness of the
Company then entitled thereto shall be secured by such Lien or charge equally
and ratably with any and all other obligations and indebtedness thereby secured,
so long as any such other obligations and indebtedness shall be so secured
(provided, that for the purpose of providing such equal and ratable security,
the principal amount of Outstanding Securities of any series of Original Issue
Discount Securities shall be such portion of the principal amount as may be
specified in the terms of that series); provided, however, that the foregoing
covenant shall not be applicable to the following: (i) mechanics', laborers',
materialmen's and other similar Liens not then delinquent and any such Liens,
whether or not delinquent, whose validity is at the time being contested in good
faith, or any Lien or charge arising by reason of pledges or deposits to secure
payments of workmen's compensation or other insurance, good faith deposits in
connection with tenders or leases of real estate, bids or contracts (other than
contracts for the payment of money), deposits to secure public or statutory
obligations, deposits to secure or in lieu of surety, stay or appeal bonds, and
deposits as security for the payment of taxes or assessments or other similar
charges; (ii) any Lien arising by reason of deposits with or the giving of any
form of security to any governmental agency or any body created or approved by
law or governmental regulation for any purpose at any time as required by law or
governmental regulation as a condition to the transaction of any business or the
exercise of any privilege or license, or to enable the Company to maintain self-
insurance or to participate in any fund for liability on any insurance risks or
in connection with workmen's compensation, unemployment insurance, old age
pensions or other social security or to share in the privileges or benefits
required for companies participating in such arrangements; (iii) the Liens of
taxes, assessments or other governmental charges for the then current year or
not at the time due, or the Liens of taxes, assessments or other governmental
charges already due but the validity of which is being contested in good faith
and against which an adequate reserve has been established; (iv) any judgment
Lien against, or upon property of, the Company, or any Lien for workmen's
compensation awards or similar awards, so long as the finality of such judgment
or award is being contested and execution thereon is stayed; and (v) Liens on
the real property of the Company which constitute minor survey exceptions, minor
encumbrances, easements or reservations of, or rights of others for, rights of
way, sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of such real property,
provided that all of the Liens referred to in this clause (v) in the aggregate
do not at any time materially detract
63
from the value of said properties or materially impair their use in the
operation of the businesses of the Company and its Subsidiaries.
SECTION 1009. Limitation On Company Prior Indebtedness.
The Company will not create, issue, assume or guarantee any unsecured
Funded Debt ranking prior to the Securities.
SECTION 1010. Waiver of Certain Covenants of the Company.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1008 to 1009, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such terms,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
SECTION 1011. Payment of Taxes and Other Claims by the Guarantor.
The Guarantor will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Guarantor or any of its
Subsidiaries or upon the income, profits or property of the Guarantor or any
such Subsidiary, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a Lien upon the property of the Guarantor
or any such Subsidiary; provided, however, that the Guarantor shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1012. Limitation Upon Mortgages and Liens of the Guarantor.
The Guarantor covenants and agrees as follows for the benefit of those
series of Securities as to which, pursuant to Section 301 in accordance with the
establishing Board Resolution and Officers' Certificates or indenture
supplemental hereto, it is provided that such series shall have the benefit of
this Section:
The Guarantor will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, create or suffer to be created or to exist, any Lien
(other than Permitted Liens) upon any of its Property, unless it has made or
will make effective provision whereby the Outstanding Guarantees will be
secured by such Lien equally and ratably with (or prior to) all other
indebtedness of the Guarantor or such Restricted Subsidiary secured by such
Lien for so long as
64
any such other indebtedness of the Guarantor or such Restricted Subsidiary
shall be so secured. Notwithstanding the foregoing, the Guarantor may, and
may permit any Restricted Subsidiary to, issue, assume, guarantee, or permit
to exist indebtedness secured by Liens on Property that are not Permitted
Liens without equally and ratably securing the Outstanding Guarantees, so
long as the sum of all such indebtedness then being issued, assumed, or
guaranteed together with all remaining outstanding indebtedness secured by
a Lien that is not a Permitted Lien together with the Attributable Debt in
respect of any Sale and Leaseback Transaction does not exceed 15% of the
Guarantor's Consolidated Net Tangible Assets.
SECTION 1013. Waiver of Certain Covenants of the Guarantor.
The Guarantor may omit in any particular instance to comply with any term,
provision or condition set forth in Section 1012 with respect to the Securities
of any series if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of such series shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Guarantor and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.
SECTION 1014. Exemption Under Investment Company Act.
The Company will not engage in any business activities or issue any
securities that will result in its not being a finance subsidiary within the
meaning of Rule 3a-5 under the Investment Company Act. The Company will at all
times be exempt from registration under the Investment Company Act pursuant to
such rule or another exemption from such registration that, in an Opinion of
Counsel, is available to the Company.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
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SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or in another manner specified as contemplated by Section 301
for such Securities. In case of any redemption at the election of the Company of
less than all the Securities of any series (including any such redemption
affecting only a single Security), the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 45 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 45 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected for
partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part, the
unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to
66
be redeemed only in part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal amount of
the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case,
and
(7) the "CUSIP" number, if any, of the Securities.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and
67
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company and the Guarantor shall execute,
and the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities having duly executed
Guarantees endorsed thereon of the same series and of like tenor, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
68
The minimum amount of any sinking fund payment provided for by the terms of
any Securities is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to any Securities of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have not been
previously so credited. The Securities to be so credited shall be received and
credited for such purpose by the Trustee at the Redemption Price, as specified
in the Securities so to be redeemed, for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days prior to each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
69
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Option to Effect Defeasance or Covenant Defeasance.
Each of the Company and the Guarantor may elect, at its option at any time,
to have Section 1302 or Section 1303 applied to any Securities and their related
Guarantees or any series of Securities and their related Guarantees, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1302 or 1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
SECTION 1302. Defeasance and Discharge.
Upon the exercise of the option (if any) to have this Section applied to
any Securities and their related Guarantees or any series of Securities and
their related Guarantees, as the case may be, the Company and the Guarantor
shall be deemed to have been discharged from their respective obligations with
respect to such Securities and Guarantees as provided in this Section on and
after the date the conditions set forth in Section 1304 are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means that
the Company and the Guarantor shall be deemed to have paid and discharged the
entire indebtedness represented by such Securities and Guarantees and to have
satisfied all their other obligations under such Securities and Guarantees and
this Indenture insofar as such Securities and Guarantees are concerned (and the
Trustee, at the expense of the Company, shall execute on Company Order proper
instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder: (1) the rights of
Holders of such Securities to receive, solely from the trust fund described in
Section 1304 and as more fully set forth in such Section, payments in respect of
the principal of and any premium and interest on such Securities when payments
are due, (2) the Company's and the Guarantor's obligations with respect to such
Securities under Sections 304, 305 and 306, and the Company's obligations with
respect to such Securities under Sections 1002 and 1003, (3) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (4) this Article.
Subject to compliance with this Article, the Company or the Guarantor may
exercise its option (if any) to have this Section applied to any Securities and
their related Guarantees notwithstanding the prior exercise of its option (if
any) to have Section 1303 applied to such Securities and their related
Guarantees.
SECTION 1303. Covenant Defeasance.
Upon the Company's or Guarantor's exercise of its option (if any) to have
this Section applied to any Securities and their related Guarantees or any
series of Securities and their related Guarantees, as the case may be, (1) the
Company and the Guarantor shall be released from their
70
obligations under Section 801(3), Sections 1006 through 1009 inclusive,
Sections 1011 through 1012 inclusive, and any covenants provided pursuant to
Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such
Securities and (2) the occurrence of any event specified in Sections 501(4)
(with respect to any of Section 801(3), Sections 1006 through 1009 inclusive,
Sections 1011 through 1012 inclusive, and any such covenants provided pursuant
to Section 301(18), 901(2) or 901(7)), 501(5) and 501(8) shall be deemed not
to be or result in an Event of Default in each case with respect to such
Securities as provided in this Section on and after the date the conditions
set forth in Section 1304 are satisfied (hereinafter called "Covenant
Defeasance"). For this purpose, such Covenant Defeasance means that, with
respect to such Securities, the Company and the Guarantor may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such specified Section (to the extent so specified in the case
of Section 501(4)), whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302 or
Section 1303 to any Securities and their related Guarantees or any series of
Securities and their related Guarantees, as the case may be:
(1) The Company or the Guarantor shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee which satisfies
the requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such
Securities, (A) money in an amount, or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and any premium
and interest on such Securities on the respective Stated Maturities, in
accordance with the terms of this Indenture and such Securities. As used
herein, "U.S. Government Obligation" means (x) any security which is (i) a
direct obligation of the United States of America for the payment of which
the full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of
which is unconditionally guaranteed as a full faith and credit obligation
by the United States of America, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by
71
a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian
with respect to any U.S. Government Obligation which is specified in Clause
(x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal
of or interest on any U.S. Government Obligation which is so specified
and held, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any
Securities and their related Guarantees or any series of Securities and
their related Guarantees, as the case may be, the Company or the Guarantor
shall have delivered to the Trustee an Opinion of Counsel stating that (A)
the Company or the Guarantor has received from, or there has been published
by, the Internal Revenue Service a ruling or (B) since the date of this
instrument, there has been a change in the applicable Federal income tax
law, in either case (A) or (B) to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a result of the
deposit, Defeasance and discharge to be effected with respect to such
Securities and will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would be the case if such deposit,
Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 1303 apply to any
Securities and their related Guarantees or any series of Securities and
their related Guarantees, as the case may be, the Company or the Guarantor
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner and
at the same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(4) The Company or the Guarantor shall have delivered to the Trustee
an Officer's Certificate to the effect that neither such Securities nor any
other Securities of the same series, if then listed on any securities
exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities and their
related Guarantees or any other Securities and their related Guarantees
shall have occurred and be continuing at the time of such deposit or, with
regard to any such event specified in Sections 501(6) and (7), at any time
on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after
such 90th day).
72
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Securities are in default within the meaning of such
Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company or the Guarantor is a party or by which
either of them is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be
registered under such Act or exempt from registration thereunder.
(9) The Company or the Guarantor shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant Defeasance
have been complied with.
SECTION 1305. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section and
Section 1306, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law.
The Company and the Guarantor shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 1304 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would
73
then be required to be deposited to effect the Defeasance or Covenant
Defeasance, as the case may be, with respect to such Securities.
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities and their related
Guarantees by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the obligations under this Indenture and such Securities and Guarantees from
which the Company and the Guarantor have been discharged or released pursuant to
Section 1302 or 1303 shall be revived and reinstated as though no deposit had
occurred pursuant to this Article with respect to such Securities and
Guarantees, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such Securities
and Guarantees in accordance with this Article; provided, however, that if the
Company or the Guarantor makes any payment of principal of or any premium or
interest on any such Security and Guarantee following such reinstatement of its
obligations, the Company or the Guarantor shall be subrogated to the rights (if
any) of the Holders of such Securities and their related Guarantees to receive
such payment from the money so held in trust.
ARTICLE XIV
HOLDERS' MEETINGS
SECTION 1401. Purposes for Which Meetings May be Called.
A meeting of Holders of any series of Outstanding Securities may be called
at any time and from time to time pursuant to the provisions of this Article
Fourteen for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give any
direction to the Trustee, or to waive or consent to the waiving of any Event of
Default hereunder and its consequences, or to take any other action authorized
to be taken by Holders pursuant to any of the provisions of Article Five;
(2) to remove the Trustee or appoint a successor trustee, pursuant to the
provisions of Article Six;
(3) to consent to the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Sections 901 and 902; or
74
(4) to take any other action authorized to be taken by or on behalf of the
Holders of any specified aggregate principal amount of the Securities under any
other provision of this Indenture or under applicable law.
SECTION 1402. Manner of Calling Meetings.
The Trustee may at any time call a meeting of Holders to take any action
specified in Section 1401. Notice of every meeting of such Holders, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed by the Trustee to the
Company and to such Holders not less than 20 nor more than 60 days prior to the
date fixed for the meeting. Any meeting shall be valid without notice if all of
the Holders of such series of Outstanding Securities are present in person or by
proxy, or if notice is waived before or after the meeting by such Holders of
such series of Outstanding Securities, and if the Company and the Trustee are
either present or have, before or after the meeting, waived notice.
SECTION 1403. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a resolution of its Board of
Directors, or the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities of the applicable series or, in the event the meeting
relates to the Holders of more than one series of Outstanding Securities, the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of such series, shall have requested the Trustee to call a meeting of
Holders to take any action authorized in Section 1401 by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have mailed notice of such meeting within 20 days after
receipt of such request, then the Company or such Holders in the amount above
specified may determine the time and the place in Overland Park, Kansas for such
meeting and may call such meeting to take any action authorized in Section 1401,
by mailing notice thereof as provided in Section 1402.
SECTION 1404. Who May Attend and Vote at Meeting.
To be entitled to vote at any meeting of Holders a person shall (a) be a
Holder of one or more Securities with respect to which the meeting is being
held, as of the record date for such meeting (or, if no record date is set, as
of the date of such meeting), or (b) be a person appointed by an instrument in
writing as proxy by such Holder of one or more Securities. The only persons who
shall be entitled to be present or to speak at any meeting of Holders shall be
the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
At any meeting each Holder or proxy shall be entitled to one vote for each
$1,000 principal amount of Outstanding Securities held or represented by him.
75
SECTION 1405. Regulations May be Made by Trustee.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders, in regard to proof of the holding of Securities and of the appointment
of proxies, and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the meeting
as it shall deem appropriate.
SECTION 1406. Evidence of Actions by Holders.
Whenever the Holders of a specified percentage in aggregate principal
amount of the Securities may take any action, the fact that the Holders of such
percentage have acted may be evidence by (a) instruments of similar tenor
executed by Holders in person or by attorney or written proxy, or (b) the
Holders voting in favor thereof at any meeting of Holders called and held in
accordance with the provisions of the rules for meetings of Holders, or (c) by a
combination thereof. The Trustee may require proof of any matter concerning the
execution of any instrument by a Holder or his attorney or proxy as it shall
deem necessary.
SECTION 1407. Exercise of Rights of Trustee and Holders Not to be Hindered
or Delayed.
Nothing in this Article Fourteen contained shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to the Holders under any of the provisions of this Indenture or of
the Securities.
76
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed,
all as of the day and year first above written.
SPRINT CAPITAL CORPORATION
By: /s/ Don A. Jensen
Attest: Don A. Jensen
/s/ Michael T. Hyde Vice President
Michael T. Hyde
Assistant Secretary
SPRINT CORPORATION
By: /s/ Don A. Jensen
Attest: Don A. Jensen
/s/ Michael T. Hyde Vice President
Michael T. Hyde
Assistant Secretary
Bank One, N.A., as Trustee
By: /s/ David B. Knox
Attest: David B. Knox
/s/ Jeffery L. Eubank Authorized Signer
Authorized Signer
77
STATE OF KANSAS )
) SS.:
COUNTY OF JOHNSON)
On the 15th day of October, 1998, before me personally came Don A. Jensen,
to me known, who, being by me duly sworn, did depose and say that he is Vice
President of Sprint Capital Corporation, one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ Lora Burton
My Commission Expires:
10/31/98
78
STATE OF KANSAS )
) SS.:
COUNTY OF JOHNSON)
On the 15th day of October, 1998, before me personally came Don A.
Jensen, to me known, who, being by me duly sworn, did depose and say that he is
Vice President of Sprint Corporation, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ Lora Burton
My Commission Expires:
10/31/98
79
STATE OF OHIO )
) SS.:
COUNTY OF FRANKLIN)
On the 15th day of October, 1998, before me personally came
David B. Knox, to me known, who, being by me duly sworn, did depose and
say that he is an authorized signer of Bank One, N.A., one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ Meletha Dawson
My Commission Expires:
10/24/98
Exhibit 10(d)
SUMMARY OF EXECUTIVE OFFICER AND BOARD OF DIRECTORS BENEFITS
<TABLE>
<CAPTION>
Description Eligible Positions Amount/Schedule
of Benefit
<S> <C> <C>
Automobile Chief Executive Officer $1,500/month
Allowance Chief Operating Officer $1,300/month
Division Presidents $1,100/month
and Executive Vice
Presidents
Senior Vice Presidents $1,000/month
Vice Presidents $900/month
Assistant Vice $700/month
Presidents
Club Chief Executive Officer, Dues approved
Membership Chief Operating at discretion
Officer, Division of CEO
Presidents and
Executive Vice
Presidents
Senior Vice Dues approved
Presidents at discretion
of Executive
Vice Presidents
Sprint Long- Board of Directors $6,000/year
Distance (continues after
Telephone retirement for
Service up to 120 months)
Chief Executive Officer, Unlimited
Chief Operating (continues after
Officer, Division retirement)
Presidents, Executive
and Senior Vice
Presidents
Sprint PCS Board of Directors $2,000/year
Service
Miscellaneous Chief Executive $15,000/year
services Officer and Chief
(e.g., Operating Officer
investment/tax Division Presidents $12,000/year
counseling, and Executive Vice
income tax Presidents
preparation, Senior Vice Presidents $10,000/year
estate Vice Presidents and $3,500/initially
planning) Assistant Vice and $1,500/year
Presidents
Disability Chief Executive Officer, 52 weeks at full
Chief Operating base pay
Officer, Division
Presidents, Executive
and Senior Vice
Presidents, Vice
Presidents and
Assistant Vice
Presidents
Separation Chief Executive Officer, Less than 5 years'
Chief Operating services:
Officer, Division 17 weeks' salary
Presidents, Executive continuation
and Senior Vice 5 to 10 years' service
Presidents, Vice 35 weeks' salary
Presidents and continuation
Assistant Vice 11 to 18 years' service
Presidents 43 weeks' salary
continuation
More than 19 years'
service:
1 year salary
continuation
</TABLE>
<TABLE>
<CAPTION>
EXHIBIT (12)
SPRINT CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES (Unaudited)
Quarter Ended Year-to-Date
September 30, September 30,
----------------- ---------------- ----------------- ----------------
1998 1997 1998 1997
- -------------------------------------------- ----------------- ---------------- ----------------- ----------------
(in millions)
Earnings
Income before income taxes and
<S> <C> <C> <C> <C>
extraordinary item $ 343.0 $ 360.3 $ 1,074.4 $ 1,260.5
Capitalized interest (33.4) (13.0) (74.7) (69.7)
Equity in losses of less than 50%
owned entities 297.9 232.7 767.8 485.0
- -------------------------------------------- --- ------------- -- ------------- --- ------------- -- -------------
Subtotal 607.5 580.0 1,767.5 1,675.8
- -------------------------------------------- --- ------------- -- ------------- --- ------------- -- -------------
Fixed charges
Interest charges 91.0 62.6 260.3 204.8
Interest factor of operating rents 39.7 33.4 115.5 96.9
Pre-tax cost of preferred stock
dividends of subsidiaries - 0.1 0.1 0.2
- -------------------------------------------- --- ------------- -- ------------- --- ------------- -- -------------
Total fixed charges 130.7 96.1 375.9 301.9
- -------------------------------------------- --- ------------- -- ------------- --- ------------- -- -------------
Earnings, as adjusted $ 738.2 $ 676.1 $ 2,143.4 $ 1,977.7
--- ------------- -- ------------- --- ------------- -- -------------
Ratio of earnings to fixed charges 5.65 7.04 5.70 6.55
--- ------------- -- ------------- --- ------------- -- -------------
Note: The ratios were computed by dividing fixed charges into the sum of
earnings (after certain adjustments) and fixed charges. Earnings
include income from continuing operations before taxes, plus equity in
the net losses of less-than-50% owned entities, less capitalized
interest. Fixed charges include (a) interest on all debt of continuing
operations (including amortization of debt issuance costs), (b) the
interest component of operating rents, and (c) the pre-tax cost of
subsidiary preferred stock dividends.
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> Dec-31-1998
<PERIOD-END> Sep-30-1998
<CASH> 47,700
<SECURITIES> 0
<RECEIVABLES> 2,681,800
<ALLOWANCES> 166,000
<INVENTORY> 349,900
<CURRENT-ASSETS> 3,878,600
<PP&E> 26,259,400
<DEPRECIATION> 12,757,200
<TOTAL-ASSETS> 20,453,800
<CURRENT-LIABILITIES> 3,205,800
<BONDS> 5,039,800
0
0
<COMMON> 1,091,300
<OTHER-SE> 8,211,000
<TOTAL-LIABILITY-AND-EQUITY> 20,453,800
<SALES> 0
<TOTAL-REVENUES> 11,940,300
<CGS> 0
<TOTAL-COSTS> 7,120,400
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 185,600
<INCOME-PRETAX> 1,074,400
<INCOME-TAX> 405,100
<INCOME-CONTINUING> 669,300
<DISCONTINUED> 0
<EXTRAORDINARY> (4,400)
<CHANGES> 0
<NET-INCOME> 664,900
<EPS-PRIMARY> 1.54
<EPS-DILUTED> 1.51
</TABLE>
