SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) October 20, 1999
SPRINT CORPORATION
(Exact name of Registrant as specified in its charter)
Kansas 0-4721 48-0457967
(State of Incorporation) (Commission File Number) (I.R.S. Employer
Identification No.)
2330 Shawnee Mission Parkway, Westwood, Kansas 66205
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (913) 624-3000
(Former name or former address, if changed since last report)
P. O. Box 11315, Kansas City, Missouri 64112
(Mailing address of principal executive offices)
<PAGE>
Item 5. Other Events
Third Quarter 1999 Results Announced
On October 20, 1999, Sprint Corporation announced third
quarter 1999 results in both its FON Group and its PCS Group.
Information concerning the results is contained in the news
release, a copy of which is filed as Exhibit 99-A to this report
and is incorporated in this report by reference.
Legal Proceedings
Seven purported class action suits were filed by
shareholders in connection with the proposed merger of Sprint
into MCI WorldCom, Inc. The suits allege that Sprint's directors
breached their fiduciary duties, and certain other duties, to
shareholders by entering into the Agreement and Plan of Merger
with MCI WorldCom, Inc. and seek various relief, including
injunction of the merger, requiring Sprint to conduct an auction
for the sale of the company and awarding compensatory damages and
costs.
The following six lawsuits were filed in Johnson County,
Kansas District Court:
Miller, et al. v. Sprint Corporation, William T. Esrey,
Ronald T. LeMay, Dubose Ausley, Michel Bon, Harold S. Hook,
Linda Koch Lorimer, Charles E. Rice and Ron Sommer, filed
October 5, 1999.
Michael Feder, et al. v. Sprint Corporation, Louis W. Smith,
Ronald T. LeMay, Irvine O. Hockaday, Jr., Michael [sic] Bon,
Dr. Ron Somner [sic], Dubose Ausley, Linda Koch Lorimer,
William T. Esrey, Warren L. Batts, Harold S. Hook, Stewart
Turley and Charles E. Rice, filed October 5, 1999.
Artemis Tsekouras, et al. v. Sprint Corporation, Louis W.
Smith, Ronald T. LeMay, Irvine O. Hockaday, Jr., Michael
[sic] Bon, Dr. Ron Somner [sic], Dubose Ausley, Linda Koch
Lorimer, William T. Esrey, Warren L. Batts, Harold S. Hook,
Stewart Turley and Charles E. Rice, filed October 4, 1999.
Selma Kaiser, et al. v. Sprint Corporation, William T.
Esrey, Ronald T. LeMay, Dubose Ausley, Michel Bon, Harold S.
Hook, Linda Koch Lorimer, Charles E. Rice and Ron Sommer,
filed October 7, 1999.
Cohen v. William T. Esrey, Ronald T. LeMay, Warren L. Batts,
Irvine O. Hockaday, Jr., Harold S. Hook, Charles E. Rice,
Linda Koch Lorimer, Stewart Turley, Dubose Ausley, Michael
[sic] Bon, Ron Sommer and Sprint Corporation, filed on
October 5, 1999.
<PAGE>
Kane v. William T. Esrey, Ronald T. LeMay, Warren L. Batts,
Irvine O. Hockaday, Jr., Harold S. Hook, Charles E. Rice,
Linda Koch Lorimer, Stewart Turley, Dubose Ausley, Michael
[sic] Bon, Ron Sommer and Sprint Corporation, filed October
5, 1999.
The following suit was filed in the Supreme Court of the
State of New York:
Seinfeld v. William T. Esrey, Warren L. Batts, Irvine O.
Hockaday, Jr., Ronald T. LeMay, Harold S. Hook, Charles E.
Rice, Linda Koch Lorimer, Stewart Turley, Dubose Ausley,
Michel Bon, Ron Sommer and Sprint Corporation, filed October
4, 1999.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
1 Form of Selling Agency Agreement dated
October 29, 1999, among Sprint Corporation, Sprint
Capital Corporation, Lehman Brothers Inc.,
Credit Suisse First Boston Corporation, J.P. Morgan
Securities Inc. and Solomon Smith Barney Inc.
99-A News Release Relating to Third Quarter 1999
Results
99-B 364-Day Credit Agreement, dated as of August 6,
1999, 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 Salomon Smith
Barney Inc., as Book Manager and Arranger, 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
<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, hereunto duly authorized.
SPRINT CORPORATION
Date: October 29, 1999 By: /s/ Laura L. Ozenberger
Laura L. Ozenberger
Assistant Secretary
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description Page
1 Form of Selling Agency Agreement dated
October 29, 1999, among Sprint Corporation, Sprint
Capital Corporation, Lehman Brothers Inc.,
Credit Suisse First Boston Corporation, J.P. Morgan
Securities Inc. and Solomon Smith Barney Inc.
99-A News Release Relating to Third Quarter 1999 Results
99-B 364-Day Credit Agreement, dated as of August 6, 1999,
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 Salomon Smith Barney Inc.,
as Book Manager and Arranger, 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
Sprint Corporation
Sprint Capital Corporation
$2,000,000,000 Medium-Term Notes
Due Nine Months or More from Date of Issue
Selling Agency Agreement
October 29, 1999
New York, New York
Lehman Brothers Inc.
3 World Financial Center
New York, N.Y. 10285
Credit Suisse First Boston
Corporation
11 Madison Avenue
New York, NY 10010
J.P. Morgan Securities Inc.
60 Wall Street
New York, NY 10260
Salomon Smith Barney Inc.
388 Greenwich Street
New York, NY 10013
Dear Sirs:
Each of Sprint Corporation, a Kansas corporation ("Sprint"),
and Sprint Capital Corporation, a Delaware Corporation ("Sprint
Capital", and together with Sprint, the "Issuers" and each an
"Issuer"), confirms its agreement with each of you with respect
to the issue and sale of Medium-Term Notes, Due Nine Months or
More from Date of Issue (the "Notes"). The aggregate principal
amount (or the equivalent thereof in one or more foreign
currencies or units consisting of multiple currencies) of Notes
which the Issuers may issue and sell at any time shall not exceed
U.S. $2,000,000,000, less the aggregate principal amount (or the
equivalent thereof in one or more foreign currencies or units
consisting of multiple currencies) of all Notes of both Issuers
issued and sold immediately prior thereto. All Notes of Sprint
Capital will be fully and unconditionally guaranteed (the
"Guaranties") as to payment of principal and any premium or
interest by Sprint, and all references herein to the "Guarantor"
shall only refer to Sprint acting in such capacity and only be
applicable with respect to Notes of Sprint Capital (or particular
series thereof which are sold pursuant to the terms of this
Agreement). All Notes and any Guaranties thereof will be issued
under an indenture dated as of October 1, 1998 (as the same may
be amended or supplemented from time to time, the "Sprint
Indenture") between Sprint and Bank One, N.A., as trustee (the
"Sprint Trustee"), or under an indenture dated as of October 1,
1998 (as the same may be amended or supplemented from time to
time, the "Sprint Capital Indenture" and, together with the
Sprint Indenture, the "Indentures" and each an "Indenture") among
Sprint, Sprint Capital and Bank One, N.A., as trustee (the
"Sprint Capital Trustee", and together with the Sprint Trustee,
the "Trustees" and each a "Trustee"). Unless otherwise specified
in the applicable pricing supplement, the Notes will be issued in
minimum denominations of U.S. $1,000 and any amount in excess
thereof that is an integral multiple thereof (or in such other
denominations in such other currencies as shall be provided in a
supplement to the Prospectus
<PAGE>
2
referred to below), will be issued only in fully registered form
and will have the annual interest rates, maturities and, if appropriate,
other terms set forth in a supplement to the Prospectus referred to
below. The Notes will be issued, and the terms thereof established,
in accordance with the Indenture under which the Notes will be issued
and the Medium-Term Notes Administrative Procedures attached hereto
as Exhibit A (the "Procedures") (unless a Terms Agreement (as defined
in Section 2(b)) modifies or otherwise supersedes such Procedures
with respect to Notes issued pursuant to such Terms Agreement).
The Procedures may only be amended by written agreement of the
Issuers, the Guarantor and you after notice to, and with the
approval of, the Trustees. For the purposes of this Agreement,
the term "Agent" shall refer to any of you acting solely in the
capacity as agent for the relevant Issuer pursuant to
Section 2(a) and not as principal (collectively, the "Agents"),
the term the "Purchaser" shall refer to one of you acting solely
as principal pursuant to Section 2(b) and not as agent, and the
term "you" shall refer to you collectively whether at any time
any of you is acting in both such capacities or in either such
capacity.
1. Representations and Warranties. Each of the Issuers
represents and warrants to, and agrees with, you as set forth
below in this Section 1. Certain terms used in this Section 1
are defined in paragraph (d) hereof.
(a) Each of the Issuers and the Guarantor meets the
requirements for use of Form S-3 under the Securities Act of 1933
(the "Act") with respect to the Registration Statement and has
filed with the Securities and Exchange Commission (the
"Commission") a registration statement on such Form (File
Numbers: 333-83577 and 333-83577-01) (together, the "Registration
Statement") including a basic prospectus, which has become
effective, for the registration under the Act of U.S.
$4,000,000,000 aggregate principal amount (or the equivalent
thereof in one or more foreign currencies or units consisting of
multiple currencies) of debt securities (the "Securities"). The
Registration Statement meets the requirements set forth in Rule
415(a)(l)(ix) or (x) under the Act and complies in all other
material respects with said Rule. Each of the Issuers and the
Guarantor has filed or will file with the Commission pursuant to
the applicable paragraph of Rule 424(b) under the Act, a
supplement to the form of prospectus included in such
registration statement relating to the Notes and the plan of
distribution thereof (the "Prospectus Supplement"). In
connection with the sale of Notes, the Issuers and the Guarantor
propose to file with the Commission pursuant to the applicable
paragraph of Rule 424(b) under the Act further supplements to the
Prospectus Supplement specifying the interest rates, maturity
dates and, if appropriate, other terms of the Notes sold pursuant
hereto or the offering thereof.
(b) As of the Execution Time, on each applicable
Effective Date, when any supplement to the Prospectus is filed
with the Commission, as of the date of any Terms Agreement (as
defined by Section 2(b)), at the date of acceptance by the
Issuer, and if applicable, the Guarantor, of an offer to purchase
any Notes and at the date of delivery by the Issuer, and if
applicable, the Guarantor, of any Notes sold hereunder (a
"Closing Date"), (i) the Registration Statement, as amended as of
any such time, and the Prospectus, as supplemented as of any such
time, and the Indentures will comply in all material respects
with the applicable requirements of the Act, the Trust Indenture
Act of 1939 (the "Trust Indenture Act") and the Securities
Exchange Act of 1934 (the "Exchange Act") and the respective
rules thereunder; (ii) the Registration Statement, as amended as
of any such time, did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and (iii) the Prospectus, as
supplemented as of any such time, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that the Issuers and the Guarantor make no
representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under
<PAGE>
3
the Trust Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statement or the
Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Issuers
or the Guarantor by any of you specifically for use in
connection with the preparation of the Registration Statement
or the Prospectus (or any supplement thereto).
(c) As of the time any Notes are issued and sold
hereunder, the Indenture will constitute a legal, valid and
binding instrument enforceable against the Issuer, and if
applicable, the Guarantor, in accordance with its terms (subject,
as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to
general principles of equity); such Notes will have been duly
authorized, executed, authenticated and, when paid for by the
purchasers thereof, will constitute legal, valid and binding
obligations of the Issuer entitled to the benefits of the
Indenture (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect
and to general principles of equity); and any Guaranties relating
to such Notes will have been duly authorized, executed and
delivered and, when such Notes are issued and delivered against
payment therefor by the purchasers thereof, will constitute
legal, valid and binding obligations of the Guarantor entitled to
the benefits of the Indenture (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally
from time to time in effect and to general principles of equity).
(d) The terms which follow, when used in this
Agreement, shall have the meanings indicated. The term "the
Effective Date" shall mean each date that each Registration
Statement and any post-effective amendment or amendments thereto
became or become effective. "Execution Time" shall mean the date
and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the form of basic
prospectus relating to the Securities contained in the
Registration Statement at the initial Effective Date. "FON Group"
shall have the meaning assigned to the Sprint FON Group in the
Articles of Incorporation of Sprint. "PCS Group" shall have the
meaning assigned thereto in the Articles of Incorporation of
Sprint. "Prospectus" shall mean the Basic Prospectus and the
Prospectus Supplement (including any supplement thereto).
"Material Adverse Effect" shall mean a material adverse effect on
(i) the condition (financial or otherwise), prospects, earnings,
business or properties of Sprint and its subsidiaries, taken as a
whole or (ii) Sprint's ability to perform the transactions
contemplated by this Agreement. "Material Subsidiary" shall mean
Sprint Capital and any other subsidiary of Sprint that is a
"significant subsidiary" of Sprint within the meaning of
Rule 1-02 under Regulation S-X promulgated by the Commission,
substituting five percent for 10 percent in the conditions
specified therein and substituting "proportionate share of the
total net revenue (after intercompany eliminations)" for "equity
in the income from continuing operations before income taxes,
extraordinary items and cumulative effect of a change in
accounting principle" and "such revenue" for "such income" in
clause (3) of such definition. "Registration Statement" shall
mean the registration statement referred to in paragraph (a)
above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time. "Rule 415" and
"Rule 424" refer to such rules under the Act. "Sprint Spectrum"
shall mean, collectively, Sprint Spectrum Holding Company, L.P.,
MinorCo L.P., PhillieCo Partners I, L.P. and PhillieCo Partners
II, L.P. and their respective subsidiaries, provided, that for
the period from and after January 1, 1999, Sprint Spectrum shall
also include SprintCom, Inc. Any reference herein to the
Registration Statement, the Basic Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 which were filed under the Exchange Act on
or before the Effective Date of the Registration Statement or the
issue date of the Basic Prospectus, the Prospectus Supplement or
the Prospectus, as the case may be; and any reference herein to
the terms
<PAGE>
4
"amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after
the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, the Prospectus Supplement or the
Prospectus, as the case may be, deemed to be incorporated therein
by reference.
2. Appointment of Agents; Solicitation by the Agents of
Offers to Purchase; Sales of Notes to a Purchaser.
(a) Subject to the terms and conditions set forth herein,
each of the Issuers and Guarantor hereby authorizes each of the
Agents to act as its agent to solicit offers for the purchase of
all or part of the Notes from each such Issuer.
On the basis of the representations and warranties, and
subject to the terms and conditions set forth herein, each of the
Agents agrees, as agent of each of the Issuers and Guarantor, to
use its reasonable best efforts to solicit offers to purchase the
Notes from each such Issuer upon the terms and conditions set
forth in the Prospectus (and any supplement thereto) and in the
Procedures.
Each of the Issuers and Guarantor reserves the right, in its
sole discretion, to instruct the Agents to suspend at any time,
for any period of time or permanently, the solicitation of offers
to purchase Notes of such Issuer. Upon receipt of such
instructions, the Agents will forthwith suspend solicitation of
offers to purchase Notes from such Issuer until such time as such
Issuer or the Guarantor has advised them that such solicitation
may be resumed.
Each of the Issuers agrees to pay each Agent a commission,
on the Closing Date with respect to each sale of Notes by the
relevant Issuer as a result of a solicitation made by such Agent,
in an amount equal to that percentage specified in Schedule I
hereto of the aggregate principal amount of the Notes sold by the
relevant Issuer. Such commission shall be payable as specified
in the Procedures.
Subject to the provisions of this Section and to the
Procedures, offers for the purchase of Notes may be solicited by
an Agent as agent for any Issuer at such time and in such amounts
as such Agent deems advisable. Any Issuer and the Guarantor may
from time to time offer Notes and any Guaranties relating thereto
for sale otherwise than through an Agent. None of the Issuers and
the Guarantor shall appoint any agent to solicit offers to
purchase Notes or any Guaranties relating thereto without
entering into an agreement with such agent which is substantially
similar to this Agreement and, in the case of an appointment of
any agent to solicit offers to purchase Notes or any Guaranties
relating thereto for the duration of this Agreement, without
giving each of the Agents prompt notice thereof.
(b) Subject to the terms and conditions stated herein,
whenever the Issuer and one of you determine that the Issuer
shall sell Notes directly to you as principal, each such sale of
Notes shall be made in accordance with the terms of this
Agreement and a supplemental agreement relating to such sale
among the Issuer, and if applicable, the Guarantor and the
Purchaser. Each such supplemental agreement (which may be an
oral or written agreement) is herein referred to as a "Terms
Agreement". The Purchaser's commitment to purchase Notes of the
Issuer pursuant to any Terms Agreement shall be deemed to have
been made on the basis of the representations and warranties of
the Issuers herein contained and shall be subject to the terms
and conditions herein set forth. Each Terms Agreement (i) shall
describe (whether orally or in writing) the Notes to be purchased
by the Purchaser pursuant thereto, specify the principal amount
of such Notes, the price to be paid to the Issuer for such Notes,
the rate at which interest will be paid on the Notes, the Closing
Date for such Notes, the place of delivery of the Notes and
payment
<PAGE>
5
therefor and the method of payment, and (ii) may also describe
(whether orally or in writing) any requirements for the delivery
of opinions of counsel, certificates from Sprint or its officers,
or a letter from Sprint's independent public accountants, as
described in Section 6(b), the period of time referred to in
Section 4(m) (if applicable), and any other terms and conditions.
Delivery of the certificates for Notes of the Issuer sold to
the Purchaser pursuant to a Terms Agreement shall be made not
later than the Closing Date agreed to in such Terms Agreement,
against payment of funds to the relevant Issuer in the net amount
due to the Company for such Notes, by the method and in the form
set forth in the Procedures unless otherwise agreed to among the
Issuer, and if applicable, the Guarantor and the Purchaser in
such Terms Agreement.
Unless otherwise agreed to among the Issuer, and if
applicable, the Guarantor and the Purchaser in a Terms Agreement,
any Note of the Company sold to a Purchaser (i) shall be
purchased by such Purchaser at a price equal to 100% of the
principal amount thereof less a percentage equal to the
commission applicable to an agency sale of a Note of identical
maturity and (ii) may be resold by such Purchaser at varying
prices from time to time or if set forth in the applicable Terms
Agreement and the applicable supplement to the Prospectus, at a
fixed public offering price. In connection with any resale of
Notes purchased, a Purchaser may use a selling or dealer group
and may reallow to any broker or dealer any portion of the
discount or commission payable pursuant hereto.
3. Offering and Sale of Notes. Each Agent, the Issuers
and the Guarantor agree to perform the respective duties and
obligations specifically provided to be performed by them in the
Procedures.
4. Agreements. Each of the Issuers and the Guarantor
agrees with you that:
(a) Prior to the termination of the offering of the
Notes (including by way of resale by a Purchaser thereof), the
Issuers will not file any amendment of the Registration Statement
or supplement to the Prospectus (except for (i) periodic and
current reports and other documents filed under the Exchange Act,
(ii) a supplement relating to any offering of Notes providing
solely for the specification of or a change in the maturity
dates, interest rates, issuance prices or other similar terms of
any Notes or (iii) a supplement relating to an offering of
Securities other than the Notes) unless they have furnished to
each of you a copy for your review prior to filing and given each
of you a reasonable opportunity to comment on any such proposed
amendment or supplement. Subject to the foregoing sentence, the
Issuers and the Guarantor will cause each supplement to the
Prospectus to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to you of such
filing. The Issuers and the Guarantor will promptly advise each
of you (i) when the Prospectus, and any supplement thereto, shall
have been filed with the Commission pursuant to Rule 424(b), (ii)
when any amendment of the Registration Statement shall have been
filed or become effective (except, in the case of clauses (i) and
(ii) of this sentence, for (x) periodic and current reports and
other documents filed under the Exchange Act, (y) a supplement
relating to any offering of Notes providing solely for the
specification of or a change in the maturity dates, interest
rates, issuance prices or other similar terms of any Notes, in
respect of which you shall not be acting as Agent or Purchaser or
(z) a supplement relating to an offering of Securities other than
the Notes of any of the Issuers), (iii) of any request by the
Commission for any amendment of the Registration Statement or
supplement to the Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and
(v) of the receipt of any notification with respect to the
suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or
<PAGE>
6
threatening of any proceeding for such purpose. Each of the Issuers
and the Guarantor will use its reasonable best efforts to prevent
the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Notes is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would
include any untrue statement of a material fact relating to the
Issuer or the Guarantor or omit to state any material fact
necessary to make the statements relating to the Issuer or the
Guarantor therein, in the light of the circumstances under which
they were made, not misleading, or if it shall be necessary to
amend the Registration Statement or to supplement the Prospectus
to comply with the Act or the Exchange Act or the respective
rules thereunder, the Issuer and the Guarantor promptly will (i)
notify each of you to suspend solicitation of offers to purchase
Notes (and, if so notified by the Issuer or the Guarantor, each
of you shall forthwith suspend such solicitation and cease using
the Prospectus as then supplemented), (ii) prepare and file with
the Commission, subject to the first sentence of paragraph (a) of
this Section 4, an amendment or supplement which will correct
such statement or omission or effect such compliance and (iii)
supply any supplemented Prospectus to each of you in such
quantities as you may reasonably request. If such amendment or
supplement, and any documents, certificates and opinions
furnished to each of you pursuant to paragraph (g) of this
Section 4 in connection with the preparation or filing of such
amendment or supplement, are satisfactory in all respects to you,
you will, upon the filing of such amendment or supplement with
the Commission and upon the effectiveness of an amendment to the
Registration Statement, if such an amendment is required, resume
your obligation to solicit offers to purchase Notes hereunder.
(c) Sprint, during the period when a prospectus
relating to Notes of either Issuer is required to be delivered
under the Act, will file promptly all documents required to be
filed with the Commission pursuant to Section 13(a) or 13(c) of
the Exchange Act and will furnish to each of you copies of such
documents. In addition, on or prior to the date on which Sprint
makes any announcement to the general public concerning earnings
or concerning any other event which is required to be described,
or which Sprint proposes to describe, in a document filed
pursuant to the Exchange Act, Sprint will furnish to each of you
the information contained or to be contained in such
announcement. Sprint also will furnish to each of you copies of
all other material press releases or announcements made by Sprint
to the general public affecting any of the Notes. Sprint will
immediately notify each of you of any downgrading in the rating
of its Notes or any of its other debt securities, or any proposal
to downgrade the rating of its Notes or any of its other debt
securities, by Moody's Investors Service, Inc. and/or Standard &
Poor's Corporation, as soon as Sprint learns of any such
downgrading or proposal to downgrade.
(d) As soon as practicable, Sprint will make generally
available to its security holders and to each of you an earnings
statement or statements of Sprint and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158
under the Act.
(e) Sprint will furnish to each of you and your
counsel, without charge, copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a
prospectus may be required by the Act, as many copies of the
Prospectus and any supplement thereto as you may reasonably
request.
(f) The Issuer and the Guarantor will arrange for the
qualification of the Notes for sale under the laws of such
jurisdictions as any of you may reasonably designate, and will
maintain such qualifications in effect so long as required for
the distribution of the Notes.
(g) The Issuers and the Guarantor shall furnish to
each of you such information, documents, certificates of
directors or officers of the Issuers and the Guarantor and
opinions of
<PAGE>
7
counsel for the Issuers and the Guarantor relating to
the business, operations and affairs of the Issuers and the
Guarantor, the Registration Statement, the Prospectus, and any
amendments thereof or supplements thereto, the Indentures, the
Notes, this Agreement, the Procedures and the performance by the
Issuers, the Guarantor and you of their and your respective
obligations hereunder and thereunder as any of you may from time
to time and at any time prior to the termination of this
Agreement reasonably request.
(h) Unless otherwise agreed as between the Issuers and
the Guarantor and any of you, each of the Issuers and the
Guarantor, jointly and severally, shall, whether or not any sale
of the Notes is consummated, (i) pay all expenses incident to the
performance of their obligations under this Agreement, including
the fees and disbursements of their accountants and counsel, the
cost of printing or other production and delivery of the
Registration Statement, the Prospectus, all amendments thereof
and supplements thereto, the Indentures, this Agreement and all
other documents relating to the offering, the cost of preparing,
printing, packaging and delivering the Notes, the fees and
disbursements, including fees of counsel, incurred in compliance
with Section 4(f), the fees and disbursements of the Trustees and
the fees of any agency that rates the Notes, (ii) reimburse each
of you on a monthly basis for all reasonable out-of-pocket
marketing expenses (including without limitation advertising
expenses, but only with respect to advertising which has been
approved, in advance, by the Issuers and the Guarantor) incurred
by you in connection with this Agreement and (iii) pay the
reasonable fees and expenses of your counsel incurred in
connection with this Agreement.
(i) Each acceptance by the Issuer, and if applicable,
the Guarantor of an offer to purchase Notes of the Issuer will be
deemed to be an affirmation that the representations and
warranties of the Issuers and the Guarantor contained in this
Agreement are true and correct at the time of such acceptance, as
though made at and as of such time, and a covenant that such
representations and warranties will be true and correct at the
time of delivery to the purchaser of the Notes relating to such
acceptance, as though made at and as of such time (it being
understood that for purposes of the foregoing affirmation and
covenant such representations and warranties shall relate to the
Registration Statement and Prospectus as amended or supplemented
at each such time). Each such acceptance by the Issuer, and if
applicable, the Guarantor of an offer for the purchase of such
Notes shall be deemed to constitute an additional representation,
warranty and agreement by the Issuers and the Guarantor that, as
of the settlement date for the sale of such Notes, after giving
effect to the issuance of such Notes, of any other Notes to be
issued on or prior to such settlement date and of any other
Securities to be issued and sold by any of the Issuers on or
prior to such settlement date, the aggregate amount of Securities
(including any Notes) which have been issued and sold by all of
the Issuers will not exceed the amount of Securities registered
pursuant to the Registration Statement.
(j) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment
or supplement (i) relating to any offering of Securities other
than the Notes, (ii) providing solely for the specification of or
a change in the maturity dates, the interest rates, the issuance
prices or other similar terms of any particular Notes sold
pursuant hereto or (iii) relating to any filing under the
Exchange Act (except quarterly reports on Form 10-Q and annual
reports on Form 10-K filed thereunder), unless in the case of
clause (iii) above, in the reasonable judgment of any of you, as
evidenced by your written notice to the Issuers and the
Guarantor, such filing is of such a nature that such a
certificate should be delivered), Sprint will deliver or cause to
be delivered promptly to each of you a certificate of Sprint,
signed by its Chairman of the Board or a Vice President with
knowledge of the matters set forth in the certificate and its
principal financial or accounting officer, dated the date of the
effectiveness of such amendment or the date of the filing of such
supplement, in form reasonably satisfactory to you, of the same
tenor as the certificate referred to in Section 5(d) but modified
to relate to the last day of the fiscal quarter for which
financial
<PAGE>
8
statements of Sprint were last filed with the Commission and to
the Registration Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such amendment
or the filing of such supplement.
(k) Each time that any Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment
or supplement (i) relating to any offering of Securities other
than the Notes, (ii) providing solely for the specification of or
a change in the maturity dates, the interest rates, the issuance
prices or other similar terms of any Notes sold pursuant hereto
or (iii) relating to any filing under the Exchange Act (except
annual reports on Form 10-K filed thereunder, unless, in the case
of clause (iii) above, in the reasonable judgment of any of you,
such filing is of such a nature that an opinion of counsel should
be furnished), the Company shall furnish or cause to be furnished
promptly to each of you a written opinion of counsel of the
Issuers and the Guarantor satisfactory to each of you, dated the
date of the effectiveness of such amendment or the date of the
filing of such supplement, in form reasonably satisfactory to
each of you, of the same tenor as the opinion referred to in
Section 5(b) but modified to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement
or, in lieu of such opinion, counsel last furnishing such an
opinion to you may furnish each of you with a letter to the
effect that you may rely on such last opinion to the same extent
as though it were dated the date of such letter authorizing
reliance (except that statements in such last opinion will be
deemed to relate to the Registration Statement and the Prospectus
as amended and supplemented to the time of the effectiveness of
such amendment or the filing of such supplement).
(l) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than an amendment or
supplement (i) relating to any offering of Securities other than
the Notes, (ii) providing solely for the specification of or a
change in the maturity dates, the interest rates or issuance
prices or other similar terms of any Notes sold pursuant hereto
or (iii) relating to any filing under the Exchange Act (except
quarterly reports on Form 10-Q and annual reports on Form 10-K
filed thereunder), unless in the case of clause (iii) above, in
the reasonable judgment of any of you, as evidenced by your
written notice to the Issuer and the Guarantor, such filing is of
such a nature that such a letter should be furnished) to include
or incorporate amended or supplemental financial information, the
Company and the Guarantor shall cause their independent certified
public accountants promptly to furnish each of you a letter,
dated the date of the effectiveness of such amendment or the date
of the filing of such supplement, in form reasonably satisfactory
to each of you, of the same tenor and scope as the letters
referred to in Section 5(e) and (f) with such changes as may be
necessary to reflect the amended and supplemental financial
information included or incorporated by reference in the
Registration Statement and the Prospectus, as amended or
supplemented to the date of such letters.
(m) During the period from the date of any Terms
Agreement to the Closing Date with respect to such Terms
Agreement or such other period as may be agreed to by the Issuer,
and if applicable, the Guarantor, and the Purchaser thereunder,
the Issuer, and if applicable, the Guarantor shall not, without
the prior consent of such Purchaser, issue or announce the
proposed issuance of any of its debt securities, including Notes
of the relevant Issuer, and if applicable, the Guarantor (other
than the Notes that are to be sold pursuant to such Terms
Agreement), with terms substantially similar to the Notes being
purchased pursuant to such Terms Agreement, other than borrowings
under its revolving credit agreements and lines of credit and
issuances of its commercial paper.
5. Conditions to the Obligations of the Agents. The
obligations of each Agent to solicit offers to purchase the Notes
of the Issuers and the Guarantor shall be subject to the
<PAGE>
9
accuracy, in all material respects, of the representations and
warranties on the part of the Issuers and the Guarantor contained
herein as of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission, at the
date of acceptance by the Issuer, and if applicable, the
Guarantor of an offer to purchase any Notes and as of each
Closing Date, to the accuracy, in all material respects, of the
statements of the Issuers and the Guarantor made in any
certificates pursuant to the provisions hereof, to the
performance by the Issuers and the Guarantor, in all material
respects, of their respective obligations hereunder and to the
following additional conditions:
(a) If filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Prospectus, and
any such supplement, shall have been filed in the manner and
within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Issuers and the Guarantor shall have furnished to
each Agent the opinion of the in-house counsel for Sprint, dated
the Execution Time, to the effect that:
(i) Each of Sprint and its Material Subsidiaries has
been duly incorporated and is validly existing as a
corporation, limited liability company or partnership, as
the case may be, in good standing under the laws of the
jurisdiction in which it is chartered or organized, with
full corporate, limited liability company or partnership
power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as
described in the Prospectus, and is duly qualified to do
business as a foreign corporation, limited liability company
or partnership and is in good standing under the laws of
each jurisdiction where the nature of its properties or the
conduct of its business requires such qualification, except
where the failure to so qualify, individually or in the
aggregate, does not have a Material Adverse Effect;
(ii) all the outstanding shares of capital stock
or ownership interests of each Material Subsidiary have been
duly and validly authorized and issued and are fully paid
and non-assessable and, except as otherwise set forth or
incorporated by reference in the Prospectus, all outstanding
shares of capital stock or ownership interests of the
Material Subsidiaries are owned by Sprint either directly or
through wholly owned subsidiaries free and clear of any
perfected security interest and, to the knowledge of such
counsel, after due inquiry, any other security interest,
claim, lien or encumbrance;
(iii) the Notes conform in all material respects to
the description thereof contained in the Prospectus (subject
to the insertion in the Notes of the maturity dates, the
interest rates and other similar terms thereof which will be
described in supplements to the Prospectus as contemplated
by the last sentence of Section 1(a) of this Agreement);
(iv) (A) the Sprint Indenture has been duly
authorized, executed and delivered by Sprint, has been duly
qualified under the Trust Indenture Act and, assuming due
authorization, execution and delivery by the trustee
constitutes a legal, valid and binding instrument
enforceable against Sprint in accordance with its terms
(subject, as to enforcement of remedies, to applicable
bankruptcy,
<PAGE>
10
reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time
in effect and to general principles of equity); and the
Notes of Sprint have been duly authorized by Sprint and when
executed and authenticated in accordance with the provisions
of the Sprint Indenture and delivered to and paid for by the
purchasers thereof, will constitute legal, valid and binding
obligations of Sprint entitled to the benefits of the Sprint
Indenture (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency,
moratorium on other laws affecting creditors' rights
generally from time to time in effect and to general
principles of equity) and (B) the Sprint Capital Indenture
has been duly authorized, executed and delivered by the
Issuers and the Guarantor, has been duly qualified under the
Trust Indenture Act and, assuming due authorization,
execution and delivery by the Trustee, constitutes a legal,
valid and binding instrument enforceable against Sprint
Capital and the Guarantor in accordance with its terms
(subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally from time to time
in effect and to general principles of equity); and the
Notes of Sprint Capital have been duly authorized, and when
executed and authenticated in accordance with the provisions
of the Sprint Capital Indenture and delivered to and paid
for by the purchasers thereof, will constitute legal, valid
and binding obligations of Sprint Capital entitled to the
benefits of the Sprint Capital Indenture (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in
effect and to general principles of equity);
(v) the Guaranties have been duly authorized and when
executed and delivered by the Guarantor and when the related
Notes have been paid for by the purchasers thereof, will
constitute valid and legally binding obligations of the
Guarantor enforceable in accordance with their terms
(subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally from time to time
in effect and to general principles of equity);
(vi) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or
before any court or governmental agency, authority or body
or any arbitrator involving Sprint or any of its
subsidiaries or its or their property, of a character
required to be disclosed in the Registration Statement which
is not adequately disclosed in the Prospectus or
incorporated by reference therein, and there is no contract
or other document of a character required to be described in
the Registration Statement or Prospectus, or to be filed as
an exhibit thereto, which is not described or filed as
required or incorporated by reference therein; and the
statements included or incorporated by reference in the
Prospectus describing any legal proceedings or material
contracts or agreements relating to the Issuers and the
Guarantor fairly summarize such matters in all material
respects;
(vii) the Registration Statement has become
effective under the Act; any required filing of the
Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time
period required by Rule 424(b); to the best knowledge of
such counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued, no proceedings
for that purpose have been instituted or threatened, and the
Registration Statement and the Prospectus (other than the
financial statements and schedules and other financial and
statistical information contained thereon or incorporated by
reference thereon and the Form T-1 Statement of eligibility
and qualification filed as an Exhibit to the Registration
Statement, as to which such counsel need express no opinion)
comply as to form in all material respects with the
applicable requirements of the Act, the Exchange Act and the
Trust Indenture Act and the respective rules thereunder; and
such counsel has no reason to believe that the Registration
Statement at the Effective Date or at the Execution Time
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Prospectus, as supplemented, at its date or at the
Execution Time includes any untrue statement of a material
fact or omits to state a material fact necessary to make the
<PAGE>
11
statements therein, in the light of the circumstances under
which they were made, not misleading;
(viii) this Agreement has been duly authorized,
executed and delivered by each of the Issuers;
(ix) no consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation of the transactions contemplated herein
except such as have been obtained under the Act, the
Exchange Act and the Trust Indenture Act and such as may be
required pursuant to the undertaking in the last
paragraph of Item 17 of the Registration Statement and under
the blue sky laws of any jurisdiction in connection with the
sale of the Notes as contemplated by this Agreement and such
other approvals (specified in such opinion) as have been
obtained;
(x) the execution and delivery of the Indentures by
the Issuers and the Guarantor (assuming due execution and
delivery by the trustee), the execution and delivery of the
Guaranties by the Guarantor, the issue and sale of the
Notes, and the consummation of all other transactions herein
contemplated and the fulfillment of the terms hereof will
not conflict with, will not result in a breach of, and will
not constitute a default under, (1) the charter or by-laws
of the Issuers, (2) the terms of any indenture or other
agreement or instrument known to such counsel and to which
either of the Issuers or any of their subsidiaries is a
party or bound, or (3) any order or regulation known to such
counsel to be generally applicable to either of the Issuers,
or any of their subsidiaries, of any court, regulatory body,
administrative agency, governmental body or arbitrator
having jurisdiction over either issuer, or any of such
subsidiaries except, as to (2) and (3), for such conflicts,
breaches or defaults that could not reasonably be expected
to have a Material Adverse Effect; and
(xi) no holders of securities of either of the
Issuers have rights to the registration of such securities
under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction
other than the State of New York or the United States, the
Delaware General Corporation Law or the laws of the State of
Kansas, to the extent deemed proper and specified in such
opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel for
the Agent and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Issuers,
the Guarantor, any of their subsidiaries and public officials.
References to the Prospectus in this paragraph (b) include any
supplements thereto at the date such opinion is rendered.
(c) Each Agent shall have received from Cravath,
Swaine & Moore, counsel for the Agents, such opinion or opinions,
dated the Execution Time, with respect to the issuance and sale
of the Notes, the Indentures, the Registration Statement, the
Prospectus (together with any supplement thereto) and other
related matters as the Agents may reasonably require, and the
Issuers and the Guarantor shall have furnished to such counsel
such documents as they request for the purpose of enabling them
to pass upon such matters.
(d) Sprint shall have furnished to each Agent a
certificate of Sprint, signed by the Chairman of the Board, the
President or a Vice President with knowledge of the matters set
forth in the certificate and the principal financial or
accounting officer of Sprint, dated the Execution Time, to the
effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus, any
supplement to the Prospectus and this Agreement and that:
<PAGE>
12
(i) the representations and warranties of the Issuers
and the Guarantor in this Agreement are true and correct in
all material respects on and as of the date hereof with the
same effect as if made on the date hereof and the Issuers
and the Guarantor have in all material respects complied
with all the agreements and satisfied all the conditions on
their part to be performed or satisfied as a condition to
the obligation of the Agents to solicit offers to purchase
the Notes;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the
Issuers' knowledge, threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the
Prospectus (exclusive of any supplement thereto), there has
been no material adverse change in the condition (financial
or other), earnings, business or properties of Sprint and
its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus (exclusive
of any supplement thereto).
(e) At the Execution Time, Ernst & Young LLP shall
have furnished each Agent a letter or letters (which may refer to
letters previously delivered to one or more of the Agents), dated
as of the Execution Time, in form and substance satisfactory to
the Agents, confirming that they are independent auditors with
respect to Sprint and its subsidiaries within the meaning of the
Act and the Exchange Act and the respective applicable published
rules and regulations thereunder and that they have performed a
review of the most recent unaudited interim financial information
of Sprint, the FON Group and the PCS Group included or
incorporated by reference in the Registration Statement and
Prospectus, if any, in accordance with Statement on Auditing
Standards No. 71, and stating in effect, except as provided in
Schedule I hereto, that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated
by reference in the Registration Statement and the
Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related
published rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by Sprint, the
FON Group and the PCS Group; their limited review, in
accordance with standards established under Statement on
Auditing Standards No. 71, of the most recent unaudited
interim financial information of Sprint, the FON Group and
the PCS Group included or incorporated by reference in the
Registration Statement and the Prospectus; carrying out
certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading
of the minutes of the meetings of the stockholders,
directors and executive and audit committees of Sprint and
its subsidiaries (as defined in the introductory paragraph
of this Agreement); inquiries of certain officials of Sprint
who have responsibility for financial and accounting matters
of Sprint and its subsidiaries as to transactions and events
subsequent to the date of the most recent audited financial
statements included or incorporated by reference in the
Registration Statement and the Prospectus; and a reading of
the letter from Deloitte & Touche LLP, independent auditors
with respect to Sprint Spectrum for the period up to March
31, 1999, to the Agents, nothing came to their attention
which caused them to believe that:
<PAGE>
13
(1) any unaudited financial statements of Sprint,
the FON Group or the PCS Group incorporated by
reference in the Registration Statement and the
Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the
Act and with the published rules and regulations of the
Commission with respect to financial statements
included or incorporated by reference in quarterly
reports on Form 10-Q under the Exchange Act; and said
unaudited financial statements are not in conformity
with generally accepted accounting principles applied
on a basis substantially consistent with that of the
audited financial statements incorporated by reference
in the Registration Statement and the Prospectus;
(2) with respect to the period subsequent to
the date of the most recent financial statements (other
than any capsule information), audited or unaudited,
included or incorporated by reference in the
Registration Statement and the Prospectus, there were,
at a specified date not more than five days prior to
the date of the letter, any changes in the long-term
debt or capital stock or decreases in the stockholders'
equity of Sprint, or any changes in the long-term debt
or decreases in the group equity of FON Group or the
PCS Group, as compared with the amounts shown on the
date of the most recent financial statements (other
than capsule information), audited or unaudited,
included or incorporated by reference in the
Registration Statement and the Prospectus, or for the
period from the date of the most recent financial
statements (other than capsule information), audited or
unaudited, included or incorporated by reference in the
Registration Statement and the Prospectus, to such
specified date there were, as compared with the
corresponding period in the preceding year, any
decreases in net operating revenues or increases in
operating loss, loss from continuing operations, net
loss, or equity in loss of Global One, of Sprint, any
decreases in net operating revenues, operating income,
income from continuing operations or net income, or any
increases in equity in loss of Global One, of the FON
Group, or any decreases in net operating revenues or
increases in operating loss or net loss of the PCS
Group, except in all instances for changes, increases
or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by
Sprint as to the significance thereof unless said
explanation is not deemed necessary by the Agents; or
(3) the information for Sprint, the FON Group or
the PCS Group included or incorporated by reference in
the Registration Statement and Final Prospectus in
response to Regulation S-K, Item 301 (Selected
Financial Data), Item 302 (Supplementary Financial
Information), Item 402 (Executive Compensation) and
Item 503(d) (Ratio of Earnings to Fixed Charges) is not
in conformity with the applicable disclosure
requirements of Regulation S-K;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical
nature (which is limited to accounting, financial or
statistical information derived from the general accounting
records of Sprint and its subsidiaries) set forth in the
Registration Statement and the Prospectus and in Exhibit 12
incorporated by reference in the Registration Statement,
including the information set forth under the caption
"Management's Discussion and Analysis of Financial Condition
and Results of Operation" included or incorporated by
Quarterly Reports on Form 10-Q, incorporated by reference in
the Registration Statement and the Prospectus, agrees with
the accounting records of Sprint and its subsidiaries,
excluding any questions of legal interpretation; and
<PAGE>
14
(iv) on the basis of a reading of the unaudited pro
forma financial statements of Sprint, the PCS Group and/or
the FON Group included or incorporated by reference in the
Registration Statement and the Prospectus (the "pro forma
financial statements"); carrying out certain specified
procedures; inquiries of certain officials of Sprint and its
subsidiaries who have responsibility for financial and
accounting matters; and proving the arithmetic accuracy of
the application of the pro forma adjustments to the
historical amounts in the pro forma financial statements,
nothing came to their attention which caused them to believe
that the pro forma financial statements do not comply as to
form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro
forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
References to the Final Prospectus in this
paragraph (e) include any supplement thereto at the date of
the letter.
(f) At the Execution Time, Deloitte & Touche LLP shall
have furnished to each Agent a letter or letters (which may refer
to letters previously delivered to one or more of the Agents), in
form and substance satisfactory to the Agents, confirming that
they are independent accountants within the meaning of the Act
and the Exchange Act and the respective applicable published
rules and regulations thereunder and that they have performed a
review of the unaudited interim financial information of Sprint
Spectrum for the three-month period ended March 31, 1999, and at
March 31, 1999, in accordance with Statement on Auditing
Standards No. 71, and stating in effect, except as provided in
Schedule I hereto, that:
(i) in their opinion the audited financial statements
and financial statement schedules included in or
incorporated by reference in the Registration Statement and
the Prospectus and reported on by them comply as to form in
all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related
published rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by Sprint
Spectrum; their limited review, in accordance with standards
established under Statement on Auditing Standards No. 71, of
the unaudited interim financial information of Sprint
Spectrum for the three-month period ended March 31, 1999 and
at March 31, 1999; carrying out certain specified procedures
(but not an examination in accordance with generally
accepted auditing standards) which would not necessarily
reveal matters of significance with respect to the comments
set forth in such letter; a reading of the minutes of the
meetings of the partners and committees of Sprint Spectrum;
and inquiries of certain officials of Sprint Spectrum who
have responsibility for financial and accounting matters,
nothing came to their attention which caused them to believe
that:
(1) any unaudited financial statements of Sprint
Spectrum included or incorporated by reference in the
Registration Statement and the Prospectus do not comply
as to form in all material respects with applicable
accounting requirements of the Act and with the
published rules and regulations of the Commission with
respect to financial statements included or
incorporated by reference in quarterly reports on
Form 10-Q under the Exchange Act; and said unaudited
financial statements are not in conformity with
generally accepted accounting principles applied on a
basis substantially consistent with that of the audited
financial statements included or incorporated by
reference in the Registration Statement and the
Prospectus; or
<PAGE>
15
(2) the information included or incorporated by
reference in the Registration Statement and Prospectus
for Sprint Spectrum in response to Regulation S-K, Item
301 (Selected Financial Data), Item 302 (Supplementary
Financial Information) and Item 503(d) (Ratio of
Earnings to Fixed Charges) is not in conformity with
the applicable disclosure requirements of Regulation S-
K; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical
nature for Sprint Spectrum (which is limited to accounting,
financial or statistical information derived from the
general accounting records of Sprint Spectrum as of and for
the year ended December 31, 1998) set forth in the
Registration Statement and the Prospectus, including the
information included or incorporated by reference in the
Proxy Statement, which is incorporated by reference in the
Registration Statement and the Prospectus, agrees with the
accounting records of Sprint Spectrum as of and for the year
ended December 31, 1998, excluding any questions of legal
interpretation.
References to the Final Prospectus in this
paragraph (f) include any supplement thereto at the date of
the letter.
(g) Prior to the Execution Time, the Issuers and the
Guarantor shall have furnished to each Agent such further
information, documents, certificates and opinions of counsel as
the Agents may reasonably request.
If any of the conditions specified in this Section 5 shall
not have been fulfilled in all material respects when and as
provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to the Agents and counsel for the Agents, this
Agreement and all obligations of any Agent hereunder may be
canceled at any time by one or more of the Agents. Notice of
such cancelation shall be given to the Issuers and the Guarantor
in writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5
shall be delivered at the office of Cravath, Swaine & Moore,
counsel for the Agents, at 825 Eighth Avenue, New York, New York,
on the date hereof.
6. Conditions to the Obligations of the Purchaser. The
obligations of the Purchaser to purchase any Notes will be
subject to the accuracy of the representations and warranties on
the part of the Issuers herein as of the date of the agreement by
the Purchaser to purchase such Notes and as of the Closing Date
for such Notes, to the performance and observance by the Issuers
and the Guarantor of all covenants and agreements herein
contained on their part to be performed and observed including
the provisions of Section 5 hereof and to the following
additional conditions precedent:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or threatened.
(b) To the extent agreed to in writing between the
Issuer and, if applicable, the Guarantor and the Purchaser in a
Terms Agreement, the Purchaser shall have received, appropriately
updated, (i) a certificate of Sprint, dated as of the Closing
Date, to the effect set forth in Section 5(d) (except that
references to the Prospectus shall be to the Prospectus as
supplemented as of the date of such Terms Agreement), (ii) the
opinion of in-house counsel for Sprint, dated as of the Closing
Date, to the effect set forth in Section 5(b), (iii) the opinion
of
<PAGE>
16
Cravath, Swaine & Moore, counsel for the Purchaser, dated as
of the Closing Date, to the effect set forth in Section 5(c),
(iv) letter of Ernst & Young, independent accountants for the
Issuers and the Guarantor, dated as of the Closing Date, to the
effect set forth in Section 5(e) and (v) the letter of Deloitte &
Touche LLP, dated as of the Closing Date, to the effect set forth
in 5(f).
(c) Prior to the Closing Date, the Issuer and the Guarantor
shall have furnished to the Purchaser such further information,
certificates and documents as the Purchaser may reasonably
request.
If any of the conditions specified in this Section 6 shall
not have been fulfilled in all material respects when and as
provided in this Agreement and an applicable Terms Agreement, or
if any of the opinions and certificates mentioned above or
elsewhere in this Agreement or such Terms Agreement and required
to be delivered to the Purchaser pursuant to the terms hereof and
thereof shall not be in all material respects reasonably
satisfactory in form and substance to the Purchaser and its
counsel, such Terms Agreement and all obligations of the
Purchaser thereunder and with respect to the Notes subject
thereto may be canceled at, or at any time prior to, the
respective Closing Date by the Purchaser. Notice of such
cancelation shall be given to the Issuer and the Guarantor in
writing or by telephone or telegraph confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to
Purchase. Each of the Issuers and the Guarantor agrees that any
person who has agreed to purchase and pay for any Note, including
a Purchaser and any person who purchases pursuant to a
solicitation by any of the Agents, shall have the right to refuse
to purchase such Note if, at the Closing Date therefor, either
(a) any condition set forth in Section 5 or 6, as applicable,
shall not be satisfied, (b) subsequent to the agreement to
purchase such Note, any change, or any development involving a
prospective change, in or affecting the business or properties of
the Issuer and its subsidiaries, or the Guarantor and its
subsidiaries, in each case, taken as whole, shall have occurred
the effect of which is, in the reasonable judgment of the
Purchaser or the Agent which presented the offer to purchase such
Note, as applicable, so material and adverse as to make it
impractical to proceed with the delivery of such Note on the
terms and in the manner contemplated in the Prospectus as amended
or supplemented, (c) subsequent to the agreement to purchase
such Note, there shall have been a decrease in the rating of any
of the debt securities of the Issuer or the Guarantor by any
"nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or a notice
given of any intended or potential decrease in any such rating or
of a possible change in any such rating that does not indicate
the direction of the possible change, or (d) any condition set
forth in Section 9(b) shall not be satisfied (any judgment to be
exercised by such Agent).
8. Indemnification and Contribution. (a) Each of the
Issuers agrees to indemnify and hold harmless each of you and
each person who controls each of you within the meaning of either
the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which you, they or
any of you or them may become subject under the Act, the Exchange
Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement for
the registration of the Securities as originally filed or in any
amendment thereof, or in the Prospectus or any preliminary
Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Issuers will
not be
<PAGE>
17
liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity
with written information furnished to the Issuers or the
Guarantor by any of you specifically for use in connection with
the preparation thereof, and (ii) such indemnity with respect to
the Prospectus or any preliminary Prospectus shall not inure to
the benefit of any of you (or any person controlling any of you)
from whom the person asserting any such loss, claim, damage or
liability purchased the Notes which are the subject thereof if
such person did not receive a copy of the Prospectus (or the
Prospectus as supplemented) excluding documents incorporated
therein by reference at or prior to the confirmation of the sale
of such Notes to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a
material fact contained in the Prospectus or any preliminary
Prospectus was corrected in the Prospectus (or the Prospectus as
supplemented). This indemnity agreement will be in addition to
any liability which the Issuers and the Guarantor may otherwise
have.
(b) Each of you agrees to indemnify and hold harmless
each of the Issuers and the Guarantor, each of their directors
and officers and each person who controls the Issuers or the
Guarantor within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from the
Issuers and the Guarantor to you, but only with reference to
written information furnished to the Issuers or the Guarantor by
such of you specifically for use in the preparation of the
documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which you may
otherwise have. Each of the Issuers and the Guarantor
acknowledges that the statements set forth in the second sentence
of the eighth paragraph of text and the ninth paragraph of text
under the heading "Plan of Distribution", of the Prospectus
Supplement constitute the only information furnished in writing
by any of you for inclusion in the documents referred to in the
foregoing indemnity, and you confirm that such statements are
correct. If there is more than one Agent hereunder, each of the
Issuers and the Guarantor acknowledges that such Agent's
agreement under this paragraph (b) of this Section 8 is several
and not joint.
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under paragraph (a) or (b)
of this Section 8, notify the indemnifying party in writing of
the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under
paragraph (a) or (b) of this Section 8. In case any such action
is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may
be legal defenses available to it and other indemnified parties
which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it
being understood, however, that the
<PAGE>
18
indemnifying party shall not be liable for the expenses of more
than one separate counsel, approved by you) (ii) the indemnifying
party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification
provided for in paragraph (a) or (b) of this Section 8 is due in
accordance with its terms but is for any reason held by a court
to be unavailable on grounds of policy or otherwise, the Issuers
and the Guarantor and each of you shall contribute to the
aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with
investigating or defending same) to which the Issuers and the
Guarantor, on the one hand, and any of you, on the other, may be
subject in such proportion so that each of you is responsible for
that portion represented by the percentage that the aggregate
commissions received by such of you pursuant to Section 2 in
connection with the Notes from which such losses, claims, damages
and liabilities arise (or, in the case of Notes sold pursuant to
a Terms Agreement, the aggregate commissions that would have been
received by you if such commissions had been payable), bears to
the aggregate principal amount of such Notes sold and the Issuers
or the Guarantor is responsible for the balance; provided,
however, in no case shall any of you be responsible for any
amount in excess of the commissions received by such of you in
connection with the Notes from which such losses, claims, damages
and liabilities arise (or, in the case of Notes sold pursuant to
a Terms Agreement, the aggregate commissions that would have been
received by such of you if such commissions had been payable)
that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8,
each person who controls any of you within the meaning of the Act
shall have the same rights to contribution as you and each person
who controls the Issuers or the Guarantor within the meaning of
either the Act or the Exchange Act, each officer of each of the
Issuers and the Guarantor and each director of each of the
Issuers and the Guarantor shall have the same rights to
contribution as the Issuers and the Guarantor, subject in each
case to clause (z) of this paragraph (d).
9. Termination. (a) This Agreement will continue in
effect until terminated as provided in this Section 9. This
Agreement may be terminated by any of the Issuers (but only as to
itself) as to any of you, or by any of you insofar as this
Agreement relates to such of you, by giving written notice of
such termination to such of you or the Issuers and the Guarantor,
as the case may be. This Agreement shall so terminate at the
close of business on the first business day following the receipt
of such notice by the party to whom such notice is given. In the
event of such termination, no party shall have any liability to
the other party hereto, except as provided in the fourth
paragraph of Section 2(a), Section 4(d), Section 4(h), Section 8
and Section 10. The provisions of this Agreement (including
without limitation Section 7 hereof) applicable to any purchase
of a Note for which an agreement to purchase exists prior to the
termination hereof shall survive any termination of this
Agreement but in any event shall terminate on the Closing Date
for purchase of such Note (except as set forth in Section 10
hereof). If, at the time of termination of this Agreement, any
Purchaser shall own any Notes with the intention of selling them,
the provisions of Section 4 shall remain in effect until the
earlier of (i) the date such Notes are sold by the Purchaser and
(ii) the date nine months from the date of termination of this
Agreement.
(b) Each Terms Agreement (oral or written) shall be
subject to termination in the absolute discretion of the
Purchaser, by notice given to the Issuer and if applicable, the
<PAGE>
19
Guarantor prior to delivery of any payment for Notes to be
purchased thereunder, if prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have
been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall
have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or
material escalation of hostilities or other calamity or crisis
the effect of which on the financial markets of the United States
is such as to make it, in the reasonable judgment of the
Purchaser, impracticable to market such Notes on the terms and in
the manner contemplated in the Prospectus as amended or
supplemented.
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Issuers, the Guarantor or their
respective officers or directors and of you set forth in or made
pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of you or
the Issuers, the Guarantor or any of their respective officers,
directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Notes. The
provisions of Sections 4(d), 4(h) and 8 hereof shall survive the
termination or cancelation of this Agreement.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to any of
you, will be mailed, delivered, telecopied or telegraphed and
confirmed to such of you, at the address specified in Schedule II
hereto; or, if sent to the Issuers or the Guarantor will be
mailed, delivered, telecopied or telegraphed to Sprint (fax no.
913-624-2256) and confirmed to it at 2330 Shawnee Mission
Parkway, Westwood, Kansas 66205, attention of the Legal
Department.
12. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons
referred to in Section 8 hereof, and no other person will have
any right or obligation hereunder except as provided in Section 7
hereof.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York,
without giving effect to the principles thereof relating to
conflicts of law (other than Section 5-1401 of the General
Obligations Law of the State of New York, and any successor
statute or statutes).
<PAGE>
20
If the foregoing is in accordance with your understanding
of our agreement, please sign and return to us the enclosed
duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and you.
Very truly yours,
SPRINT CAPITAL CORPORATION,
as an Issuer
By: __________________________
Title: Vice President
SPRINT CORPORATION,
as an Issuer and the Guarantor
By: __________________________ By: __________________________
Title: Vice President Title: Assistant Secretary
<PAGE>
21
The foregoing Agreement is hereby confirmed and accepted as of
the date hereof.
LEHMAN BROTHERS INC.
By:
Title:
CREDIT SUISSE FIRST BOSTON
CORPORATION
By:________________________
Title:
J.P. MORGAN SECURITIES INC.
By:________________________
Title:
SALOMON SMITH BARNEY INC.
By:_________________________
Title:
<PAGE>
22
SCHEDULE I
Commissions:
Each Issuer agrees to pay each Agent, unless otherwise
greed by the Issuer and such Agent, a commission equal to the
following percentage of the principal amount of each Note of the
Issuer sold by such Agent:
Terms Commission Rate
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to and including 30 years .750%
Over 30 years To be negotiated at the time
of sale
<PAGE>
23
SCHEDULE II
Address for Notice to Agent:
Notices to Credit Suisse First Boston Corporation shall be
directed to them at 11 Madison Avenue, New York, NY 10010,
Attention of Short and medium-Term Finance, Telephone (212) 325-
7198, Fax (212) 325-8183.
Notices to Lehman Brothers Inc. shall be directed to them at
3 World Financial Center, 12th Floor, New York, New York 10285,
Attention of Medium-Term Note Origination, Telephone (212) 526-
8400, Fax (212) 526-7007.
Notices to J.P. Morgan Securities Inc. shall be directed to
it at 60 Wall Street, Third Floor, New York, New York 10260,
Attention of MTN Trading Desk, Fax (212) 648-5909.
Notices to Salomon Smith Barney Inc. shall be directed to it
at 388 Greenwich Street, New York, New York 10013, Attention of
the Medium-Term Note Department.
www.sprint.com
Contact:
Mark Bonavia, Sprint, (O) 913-624-3552
E-mail: [email protected]
For Immediate Release
Editor's note: In the second quarter of 1999, Sprint
effected a two-for-one stock split of its FON common stock.
Sprint FON Group earnings per share for prior periods have
been restated. For comparative purposes, our discussion of
local telephone results assumes the fourth quarter 1998 sale
of local exchanges that occurred at the beginning of 1998.
The Sprint FON Group (NYSE: FON) is comprised of
Sprint's core wireline telecommunications operations, which
include long-distance, local telephone and product
distribution and directory publishing businesses. It also
includes activities related to the development of Sprint
ION, Integrated On-Demand Network; and other ventures,
consisting mainly of Sprint's investment in Global One.
The Sprint PCS Group (NYSE: PCS) consists of Sprint's
wireless personal communication services operations.
SPRINT ANNOUNCES RECORD THIRD QUARTER RESULTS
Quarterly revenues surpass $5 billion mark
KANSAS CITY, Mo., October 20, 1999 - Sprint today announced
record third quarter results. Consolidated Sprint revenue for
the quarter was $5.11 billion, the first $5 billion quarter in
the corporation's history, and an 18 percent increase from $4.34
billion in the same period last year.
Diluted earnings per share in the FON Group's core
business grew 11 percent from the third quarter a year ago
to 59 cents per share. The gain was driven by record
revenue and a double-digit increase in operating income.
Record-setting customer acquisition continued in the PCS
Group during the quarter, while per customer acquisition
costs and operating costs-per-customer decreased compared to
a year ago.
<PAGE>
-2-
"Sprint's record $5 billion quarter demonstrates the power
of a company with local, long-distance, Internet, data and
wireless capabilities," said William T. Esrey, Sprint chairman
and chief executive officer. "Those capabilities, supported by
superior distribution channels, enable Sprint to bundle wireless,
local and long-distance services; sell our portfolio of products
in thousands of stores located only minutes from the majority of
U.S. homes; pioneer the wireless web and advanced wireless data
offerings; and pursue our nationwide, integrated 'any distance'
communications strategy through Sprint ION, which will utilize
DSL access and one of the broadest fixed wireless infrastructures
in the U.S."
SPRINT FON GROUP HIGHLIGHTS:
- - Revenues increased 7 percent in the third quarter of
1999 to $4.34 billion from $4.04 billion in the third
quarter of 1998.
- - Diluted earnings per share from recurring core
operations increased 11 percent to 59 cents, compared to 53
cents per share a year ago.
- - Operating income from core operations increased 12
percent to $843 million from $750 million last year.
- - Operating cash flow from core operations was $1.37
billion, up 11 percent from $1.24 billion a year ago.
- - Net income was $359 million, or 41 cents per share,
down 13 percent from $415 million, or 47 cents per share, a
year ago. The decrease was due largely to expected losses
related to Sprint ION and increased losses from Global One.
Long-distance
- Revenues increased 8 percent to $2.71 billion from
$2.50 billion in the third quarter of 1998.
- Operating income was $415 million, up 21 percent from
$344 million a year ago.
- Calling volumes rose 23 percent from the third quarter
of 1998.
- Operating cash flow increased 14 percent to $655
million from $576 million a year ago.
Local Telecommunications
- Revenues increased 6 percent to $1.42 billion from
$1.34 billion in the third quarter a year ago.
- Operating income rose 8 percent to $378 million from
$350 million during the same period last year.
- Access lines increased 5 percent from the previous
year, ending the quarter with a total of over 7.9 million
access lines.
- Operating cash flow increased 8 percent to $638 million
from $589 million a year ago.
Product Distribution and Directory Publishing
- Revenues were flat in the third quarter at $437 million
compared to $435 million a year ago. Non-affiliate sales
increased 10 percent, but were largely offset by a decrease
in product sales to affiliates.
- Operating income increased 12 percent to $64 million
from $57 million during last year's third quarter.
<PAGE>
-3-
Sprint ION and Other Ventures
- Sprint ION's after-tax losses were 7 cents per share
for the quarter, compared with 2 cents per share in the
third quarter of 1998.
- Third quarter losses for Global One and other ventures
were 11 cents per share compared to 4 cents per share a year
ago.
"Sprint's FON Group performance was marked by excellent
execution in our core businesses, effective leveraging of
distribution channels to increase product sales and
significant advances toward our nationwide roll-out of
Sprint ION to businesses and consumers," Esrey said.
In the long-distance business, operating income,
calling volumes and operating cash flow experienced double-
digit growth, despite increased pricing pressures in the
long-distance market.
In the long-distance residential market, products that
cater to consumers' lifestyles - Sprint Nickel Nights,
Sprint Sense Anytime and Sprint 1000 - continue to fuel
volume and revenue growth. Sprint Nickel Nights, introduced
in July, has achieved a record volume of sales calls and has
succeeded in attracting callers who make 30 percent more
calls than Sprint's average customer. Once again Sprint was
recognized for its world-class customer service, winning for
the fifth consecutive year J.D. Power and Associates' top
ranking for overall customer satisfaction among high-volume
residential long-distance users.
In the long-distance business segment, revenues for
data services, including ATM, Internet Protocol, and Frame
Relay, increased more than 45 percent compared to the third
quarter of 1998.
In the local telephone operation, access line growth in
the quarter was driven by demand for additional lines to
support Internet access. In the carrier market, Sprint
secured a four-year contract worth an estimated $30 million
to provide payphones and telecommunications devices for the
deaf to a major transportation company.
Global One's operating results continued to be impacted
by regional economic conditions and competitive pricing
pressures. During the quarter, Sprint underscored its plan
to restructure Global One in conjunction with France Telecom
and Deutsche Telekom.
In other key strategic initiatives - service bundling,
leveraging multiple distribution channels, building a fixed
wireless path to homes and businesses and launching Sprint
ION - Sprint made significant progress, further
differentiating itself and defining the future of the
industry.
Sprint Solutions, the bundle of local and long-distance
services sold through Sprint's local telephone operations,
has made a significant impact, attracting and retaining
customers and increasing Sprint's long-distance market share
in Sprint's local territory. In the quarter, more than 40
percent of all new Sprint local customers chose the bundled
offering as their basic
<PAGE>
-4-
service package. Additionally, the Sprint Solutions bundle
- - which also features local add-on services such as caller
ID, call waiting and voicemail - has contributed to
increased penetration of those services and enhanced local
revenue.
Sprint's distribution channel of over 5000 RadioShack
and 780 Staples stores across the country has contributed to
increased consumer sales of Sprint's wireline and wireless
products in the quarter. Sales of Sprint products and
services in RadioShack stores doubled this quarter compared
to the same quarter last year.
In the quarter, Sprint announced Sprint ION's
nationwide availability to large businesses throughout the
United States and began to build a fixed wireless
infrastructure that will serve as a cost-effective "third
path" - along with cable and local telephone lines - to
bring Sprint ION's "any distance" communications
capabilities to homes and businesses. To support the Sprint
ION and fixed wireless initiatives, Sprint announced during
the quarter the creation of a new organization to accelerate
the development of nationwide wireless broadband services to
deliver Sprint ION. Upon the expected close of recent
acquisitions of broadband wireless companies, Sprint will
have spectrum to reach over 30 million households in 80
markets. Initially, the fixed wireless network will provide
businesses and consumers with high-speed Internet access,
but it will quickly be provisioned to offer access to Sprint
ION. Sprint ION will enable users to conduct multiple phone
calls, high-speed Internet sessions, fax transmissions and
videoconferences simultaneously over one connection.
SPRINT PCS GROUP HIGHLIGHTS:
The Sprint PCS Group achieved record third quarter
subscriber growth, adding 720,000 new customers - an 87
percent increase over the third quarter last year and the
third highest quarterly figure ever reported in U.S.
wireless industry history. Sprint PCS has added 2.1 million
subscribers in the first three quarters of 1999.
- - Sprint PCS ended the quarter with a total of nearly 4.7
million customers nationwide, more than two-and-one-half
times the number a year ago.
- - Average monthly revenue per user (ARPU) remained steady
at $54.
- - Total revenues were $844 million in the third quarter.
Operating cash flow losses were $397 million.
- - Losses for the quarter were $1.31 per share.
- - Capital expenditures were $608 million for the quarter,
reflecting the continued expansion of the company's
nationwide network. The Sprint PCS network, including
affiliates, now covers more than 180 million people
nationwide.
"Sprint PCS continues to outperform the industry,
adding customers at an industry-leading pace while
maintaining healthy revenue per subscriber," Esrey said.
<PAGE>
-5-
In the quarter, Sprint PCS broke new ground in the
wireless world with the nationwide launch of the Sprint PCS
Wireless Web, a breakthrough suite of simple, user-friendly
wireless data products and services. The Sprint PCS
Wireless Web consists of three services:
- - The Wireless Web Browser allows customers to connect to
select Internet-based content "real time" whenever they
want, using their Sprint PCS Phones to interactively browse
special text-only versions of popular web sites;
- - Wireless Web Updates from Yahoo! allows customers to
receive automatic updates straight from Yahoo! directly on
their Sprint PCS Phones;
- - The Wireless Web Connection allows customers to do
virtually anything they do today while tethered to a
wireline modem - "on the go," and wirelessly.
In addition to Yahoo!, Sprint PCS forged relationships
with several key content providers for its Wireless Web
service including Weather.com, CNN Interactive, Bloomberg.com,
MapQuest.com, InfoSpace.com and Ameritrade.
Sprint PCS also unveiled a full lineup of new web-
capable wireless phones from major manufacturers including
Samsung, Denso, Qualcomm, Motorola, Sanyo, and an exciting
new Smart Phone from NeoPoint.
MERGER ANNOUNCEMENT
On Oct. 5, MCI/WorldCom and Sprint announced a
definitive merger agreement creating the pre-eminent global
communications company for the 21st century. The combined
company, to be called WorldCom, will provide a full range of
services to residential and business customers on its owned,
end-to-end, state-of-the-art network infrastructure.
WorldCom will be a leader in the fastest growing areas of
global communications services, offering innovative
broadband, "all distance" services to businesses and homes,
and nationwide digital wireless voice and data services.
The merger is subject to the approvals of MCI/WorldCom
and Sprint stockholders as well as approvals from the
Federal Communications Commission, the Justice Department,
various state government bodies and foreign antitrust
authorities. The companies anticipate that the merger will
close in the second half of 2000.
Nine Months Results
For the nine months ended September 30, 1999, Sprint
FON Group revenues increased 7 percent to $12.76 billion
from $11.88 billion in the first nine months of 1998.
Operating income rose 5 percent to $2.20 billion from $2.09
billion, and operating cash flows grew 7 percent to $3.76
billion from $3.51 billion. Net income for the period was
$1.15 billion, or $1.31 per share, compared to $1.13
billion, or $1.29 per share, for 1998.
<PAGE>
-6-
For the first nine months of 1999, Sprint PCS Group
revenues increased to $2.18 billion from $788 million in
1998. Operating loss for the first nine months of 1999 was
$2.33 billion compared to a loss of $1.77 billion for the
same period in 1998. The 1999 net loss was $1.80 billion, or
$3.97 per share, compared to a loss of $1.24 billion, or
$2.99 per share, last year. The 1999 loss includes a 5-
cents per share charge related to the early extinguishment
of debt. The nine-month comparisons reflect 1998 pro forma
operating results of the Sprint PCS Group, assuming the
Sprint PCS restructuring occurred at the beginning of 1998.
Sprint is a global communications company - at the
forefront of integrating long-distance, local and wireless
communications services, and one of the largest carriers of
Internet traffic. Sprint built and operates the United
States' first nationwide all-digital, fiber-optic network
and is a leader in advanced data communications services.
Sprint has $17 billion in annual revenues and serves more
than 20 million business and residential customers.
<PAGE>
<TABLE>
Sprint Corporation
FON GROUP
COMBINED STATEMENTS OF INCOME (unaudited)
(millions, except per share data)
<CAPTION>
Quarters Ended Year-to-Date
September 30, September 30,
-------------------------------- --------------------------------
1999 1998(1) 1999 1998(1)
-------------------------------- --------------------------------
<S> <C> <C> <C> <C>
Net operating revenues $ 4,341 $ 4,039 $ 12,757 $ 11,876
- --------------------------------------------------------------------------------------- --------------------------------
Operating expenses
Costs of services and products 2,026 1,895 5,891 5,644
Selling, general and administrative 1,047 941 3,104 2,719
Depreciation and amortization 542 490 1,563 1,425
- --------------------------------------------------------------------------------------- --------------------------------
Total operating expenses 3,615 3,326 10,558 9,788
- --------------------------------------------------------------------------------------- --------------------------------
Operating income 726 713 2,199 2,088
Interest expense (38) (75) (132) (227)
Equity in loss of Global One (71) (33) (195) (120)
Other income (expense), net (9) 27 49 89
- --------------------------------------------------------------------------------------- --------------------------------
Income before income taxes 608 632 1,921 1,830
Income taxes (249) (217) (770) (695)
- --------------------------------------------------------------------------------------- --------------------------------
Income before extraordinary item 359 415 1,151 1,135
Extraordinary item, net - - - (4)
- --------------------------------------------------------------------------------------- --------------------------------
Net income 359 415 1,151 1,131
Preferred stock dividends received (declared) 2 - 5 (1)
- --------------------------------------------------------------------------------------- --------------------------------
Earnings applicable to common stock $ 361 $ 415 $ 1,156 $ 1,130
-------------------------------- --------------------------------
Diluted earnings per common share Actual Pro Forma(1)(2) Actual Pro Forma(1)(2)
-------------- --------------- ------------- ----------------
Core businesses $ 0.59 $ 0.53 $ 1.70 $ 1.51
Sprint ION (0.07) (0.02) (0.16) (0.06)
Other ventures (0.11) (0.04) (0.23) (0.16)
- --------------------------------------------------------------------------------------- --------------------------------
Total $ 0.41 $ 0.47 $ 1.31 $ 1.29
-------------- --------------- --------------- ---------------
Diluted weighted average common shares outstanding 886.7 879.0 884.3 877.5
-------------- --------------- --------------- ---------------
Basic earnings per common share $ 0.42 $ 0.48 $ 1.33 $ 1.31
-------------- --------------- --------------- ---------------
<FN>
(1) The pro forma information assumes the FON stock existed for all periods presented. In November 1998, Sprint completed the
restructuring of Sprint PCS and recapitalized Sprint common shares into two separate classes - FON stock and PCS stock. FON
stock is intended to reflect the performance of Sprint's long distance division, local division, and product distribution and
directory publishing businesses. It also reflects activities to develop and deploy Sprint ION(sm), Integrated On-Demand
Network, and other strategic ventures (mainly Sprint's investment in Global One).
</FN>
<FN>
(2) In the 1999 second quarter, Sprint effected a two-for-one stock split of its FON stock. FON Group earnings per sheare for
prior periods have been restated to reflect this stock split.
</FN>
</TABLE>
<PAGE>
<TABLE>
Sprint Corporation
FON GROUP
SELECTED OPERATING RESULTS
(millions)
<CAPTION>
Quarters Ended Year-to-Date
September 30, September 30,
---------------------- ----------------------
1999 1998 1999 1998
---------------------- ----------------------
<S> <C> <C> <C> <C>
Long Distance Division
Net operating revenues $ 2,712 $ 2,501 $ 8,010 $ 7,329
- -----------------------------------------------------------------------------------------------------------------
Operating expenses
Interconnection 1,021 958 3,066 2,889
Operations 389 372 1,066 1,072
Selling, general and administrative 647 595 1,976 1,723
Depreciation and amortization 240 232 699 660
- -----------------------------------------------------------------------------------------------------------------
Total operating expenses 2,297 2,157 6,807 6,344
- -----------------------------------------------------------------------------------------------------------------
Operating income $ 415 $ 344 $ 1,203 $ 985
---------------------- ----------------------
Local Division
Net operating revenues
Local service $ 657 $ 615 $ 1,942 $ 1,803
Network access 503 479 1,495 1,448
Toll service 54 62 163 192
Other 202 193 571 545
- -----------------------------------------------------------------------------------------------------------------
Net operating revenues 1,416 1,349 4,171 3,988
- -----------------------------------------------------------------------------------------------------------------
Operating expenses
Costs of services and products 489 459 1,432 1,349
Selling, general and administrative 289 291 858 851
Depreciation and amortization 260 239 765 708
- -----------------------------------------------------------------------------------------------------------------
Total operating expenses 1,038 989 3,055 2,908
- -----------------------------------------------------------------------------------------------------------------
Operating income $ 378 $ 360 $ 1,116 $ 1,080
---------------------- ----------------------
Product Distribution and Directory Publishing
Net operating revenues $ 437 $ 435 $ 1,309 $ 1,272
---------------------- ----------------------
Operating income $ 64 $ 57 $ 179 $ 177
---------------------- ----------------------
Sprint ION
Operating expenses $ (110) $ (33) $ (243) $ (78)
---------------------- ----------------------
Other Ventures
Net operating revenues $ 1 $ - $ 1 $ -
---------------------- ----------------------
Operating loss $ (7) $ (4) $ (17) $ (35)
---------------------- ----------------------
Unallocated Corporate Operations and
Intercompany Eliminations
Net operating revenues $ (225) $ (246) $ (734) $ (713)
---------------------- ----------------------
Operating income $ (14) $ (11) $ (39) $ (41)
---------------------- ----------------------
Sprint's FON Group reporting segments are intended to reflect the operating results of its long distance division,
local division, and product distribution and directory publishing businesses. They also include activities to
develop and deploy Sprint ION(sm), Integrated On-Demand Network, and other strategic ventures.
</TABLE>
<PAGE>
<TABLE>
FON GROUP
CONDENSED COMBINED BALANCE SHEETS
(millions)
<CAPTION>
September 30, December 31,
1999 1998
--------------------------------------
(unaudited)
<S> <C> <C>
Assets
Current assets
Cash and equivalents $ 410 $ 432
Accounts receivable, net 2,753 2,384
Other 1,533 953
- -------------------------------------------------------------------------------------------------------------------
Total current assets 4,696 3,769
- -------------------------------------------------------------------------------------------------------------------
Property, plant and equipment
Long distance division 9,551 9,241
Local division 15,697 14,858
Other 1,873 1,057
- -------------------------------------------------------------------------------------------------------------------
Total property, plant and equipment 27,121 25,156
Accumulated depreciation (13,670) (12,692)
- -------------------------------------------------------------------------------------------------------------------
Net property, plant and equipment 13,451 12,464
- -------------------------------------------------------------------------------------------------------------------
Other 3,291 2,768
- -------------------------------------------------------------------------------------------------------------------
Total $ 21,438 $ 19,001
--------------------------------------
Liabilities and group equity
Current liabilities
Current maturities of long-term debt $ 827 $ 33
Accounts payable and accrued interconnection costs 1,726 1,876
Other 1,429 1,384
- -------------------------------------------------------------------------------------------------------------------
Total current liabilities 3,982 3,293
Long-term debt 4,892 4,409
Deferred income taxes and investment tax credits 965 828
Other 1,504 1,447
Group equity 10,095 9,024
- -------------------------------------------------------------------------------------------------------------------
Total $ 21,438 $ 19,001
--------------------------------------
</TABLE>
<PAGE>
<TABLE>
Sprint Corporation
FON GROUP
CONDENSED COMBINED CASH FLOW INFORMATION (unaudited)
(millions)
<CAPTION>
Year-to-Date
September 30,
----------------------------
1999 1998
----------------------------
<S> <C> <C>
Operating Activities
Net income $ 1,151 $ 1,131
Equity in net losses of affiliates 244 138
Depreciation and amortization 1,563 1,425
Other, net (713) 97
- -------------------------------------------------------------------------------------------------------
Net cash provided by operating activities 2,245 2,791
- -------------------------------------------------------------------------------------------------------
Investing Activities
Capital expenditures
Long distance division (773) (977)
Local division (1,064) (1,042)
Sprint ION (358) (89)
Other (260) (212)
Investments in and advances to affiliates, net (82) (794)
Purchase of fixed wireless broadband companies (271) -
Other, net (11) (14)
- -------------------------------------------------------------------------------------------------------
Net cash used by investing activities (2,819) (3,128)
- -------------------------------------------------------------------------------------------------------
Financing Activities
Increase in debt, net 717 706
Dividends paid (317) (292)
Treasury stock purchases (48) (235)
Proceeds from FON common stock issued 111 49
Other, net 89 55
- -------------------------------------------------------------------------------------------------------
Net cash provided by financing activities 552 283
- -------------------------------------------------------------------------------------------------------
Decrease in cash and equivalents (22) (54)
Cash and equivalents at beginning of period 432 102
- -------------------------------------------------------------------------------------------------------
Cash and equivalents at end of period $ 410 $ 48
----------------------------
</TABLE>
<PAGE>
<TABLE>
Sprint Corporation
PCS GROUP
COMBINED STATEMENTS OF OPERATIONS (unaudited)
(millions, except per share data)
<CAPTION>
Quarters Ended Year-to-Date
September 30, September 30,
--------------------------- ---------------------------
1999 1998(1) 1999 1998(1)
--------------------------- ---------------------------
<S> <C> <C> <C> <C>
Net operating revenues $ 844 $ 320 $ 2,184 $ 788
- -----------------------------------------------------------------------------------------------------------------
Operating expenses
Costs of services and products 579 295 1,620 783
Selling, general and administrative 662 377 1,777 1,010
Depreciation and amortization 393 213 1,112 536
- ---------------------------------------------------------------------------------- ---------------------------
Total operating expenses 1,634 885 4,509 2,329
- ---------------------------------------------------------------------------------- ---------------------------
Operating loss (790) (565) (2,325) (1,541)
Interest expense (176) (135) (497) (358)
Other partners' loss in Sprint PCS - 368 - 1,008
Other income, net 9 41 39 122
- ---------------------------------------------------------------------------------- ---------------------------
Loss before income taxes (957) (291) (2,783) (769)
Income taxes 342 115 1,008 295
- ---------------------------------------------------------------------------------- ---------------------------
Net loss before extraordinary item (615) (176) (1,775) (474)
Extraordinary item, net - - (21) -
- -----------------------------------------------------------------------------------------------------------------
Net loss (615) (176) (1,796) (474)
Preferred stock dividends (4) - (11) -
- -----------------------------------------------------------------------------------------------------------------
Loss applicable to common stock $ (619) $ (176) $ (1,807) $ (474)
--------------------------- ---------------------------
Diluted and basic loss per common share Actual Pro Forma(2) Actual Pro Forma(2)
------------- -------------- ----------- ------------
Continuing operations $ (1.31) $ (1.04) $ (3.92) $ (2.99)
Extraordinary item - - (0.05) -
- ---------------------------------------------------------------------------------- ---------------------------
Total $ (1.31) $ (1.04) $ (3.97) $ (2.99)
------------- ----------- ------------ ------------
Diluted and basic weighted average common shares 473.3 415.8 455.1 415.8
------------- ----------- ------------ ------------
<FN>
(1) In November 1998, Sprint completed the restructuring of Sprint PCS and purchased the remaining ownership
interests in Sprint PCS from Tele-Communications, Inc., Comcast Corporation and Cox Communications, Inc.
(the Cable Partners). The PCS Group includes the domestic wireless phone services of Sprint Spectrum Holding
Company and PhillieCo (together, Sprint PCS) and SprintCom. The results for Sprint PCS were consolidated in
1998, with the Cable Partners' share of losses through the restrucuturing date relected as "Other partners'
loss in Sprint PCS."
</FN>
<FN>
(2) In November 1998, Sprint recapitalized Sprint common shares into two separate classes - FON stock and PCS
stock. The following third quarter and year-to-date 1998 pro forma information was used as the basis to
compute diluted and basic loss per common share and assumes the restructuring and recapitalization occurred
at the beginning of 1998.
</FN>
Quarter Ended Year-to-Date
September 30, 1998 September 30, 1998
------------------------ ------------------
Net operating revenues $ 320 $ 788
----------- ------------
Operating loss $ (603) $ (1,765)
----------- ------------
Net loss $ (432) $ (1,244)
----------- ------------
</TABLE>
<PAGE>
<TABLE>
Sprint Corporation
PCS GROUP
CONDENSED COMBINED BALANCE SHEETS
(millions)
<CAPTION>
September 30, December 31,
1999 1998
----------------------------------
(unaudited)
<S> <C> <C>
Assets
Current assets
Cash and equivalents $ 16 $ 173
Accounts receivable, net 545 306
Current tax benefit receivable from the FON Group 372 170
Other 400 206
- ----------------------------------------------------------------------------------------------------
Total current assets 1,333 855
Property, plant and equipment, net 7,351 6,535
Intangible assets, net 8,350 7,338
Other 426 410
- ----------------------------------------------------------------------------------------------------
Total $ 17,460 $ 15,138
----------------------------------
Liabilities and group equity
Current liabilities
Current maturities of long-term debt $ 178 $ 348
Accounts payable 508 371
Construction obligations 936 979
Other 1,180 702
- ----------------------------------------------------------------------------------------------------
Total current liabilities 2,802 2,400
Long-term debt 9,630 7,847
Deferred income taxes 948 1,013
Other 114 123
Group equity 3,966 3,755
- ----------------------------------------------------------------------------------------------------
Total $ 17,460 $ 15,138
----------------------------------
</TABLE>
<PAGE>
<TABLE>
Sprint Corporation
PCS GROUP
CONDENSED COMBINED CASH FLOW INFORMATION (unaudited)
(millions)
<CAPTION>
Year-to-Date
September 30,
----------------------------
1999 1998(1)
----------------------------
<S> <C> <C>
Operating Activities
Net loss $ (1,796) $ (474)
Equity in net losses of affiliates - 687
Depreciation and amortization 1,112 2
Deferred income taxes (130) 57
Increase in current tax receivable from FON Group (202) (352)
Other, net 187 316
- ----------------------------------------------------------------------------------------------------------
Net cash provided (used) by operating activities (829) 236
- ----------------------------------------------------------------------------------------------------------
Investing Activities
Capital expenditures (1,580) (672)
Other, net (82) (194)
- ----------------------------------------------------------------------------------------------------------
Net cash used by investing activities (1,662) (866)
- ----------------------------------------------------------------------------------------------------------
Financing Activities
Increase (decrease) in debt, net 1,495 (7)
Advances from and equity transfers to FON Group,net - 637
Proceeds from PCS common stock issued 856 -
Dividends paid (11) -
Other, net (6) -
- ----------------------------------------------------------------------------------------------------------
Net cash provided by financing activities 2,334 630
- ----------------------------------------------------------------------------------------------------------
Decrease in cash and equivalents (157) -
Cash and equivalents at beginning of period 173 -
- ----------------------------------------------------------------------------------------------------------
Cash and equivalents at end of period $ 16 $ -
----------------------------
<FN>
(1) The PCS restructuring occurred in November 1998. Cash flows prior to that date relect the operations
of SprintCom and Sprint's investment in Sprint PCS.
</FN>
</TABLE>
<PAGE>
<TABLE>
Sprint Corporation
CONDENSED CONSOLIDATED BALANCE SHEETS
(millions)
<CAPTION>
September 30, December 31,
1999 1998
------------------------------------
(unaudited)
<S> <C> <C>
Assets
Current assets
Cash and equivalents $ 426 $ 605
Accounts receivable, net 3,298 2,690
Other 1,865 1,092
- ------------------------------------------------------------------------------------------------------------------
Total current assets 5,589 4,387
Property, plant and equipment, net 20,776 18,983
Intangible assets, net 9,593 7,693
Other 2,026 2,167
- ------------------------------------------------------------------------------------------------------------------
Total $ 37,984 $ 33,230
------------------------------------
Liabilities and shareholders' equity
Current liabilities
Current maturities of long-term debt $ 1,005 $ 247
Accounts payable and accrued interconnection costs 2,234 2,247
Construction obligations 936 979
Other 2,143 1,967
- ------------------------------------------------------------------------------------------------------------------
Total current liabilities 6,318 5,440
Long-term debt 14,376 11,942
Deferred taxes and investment tax credits 1,905 1,830
Other 1,619 1,570
Common stock and other shareholders' equity
Common stock
Class A 216 216
FON 1,575 701
PCS 431 375
PCS preferred stock 247 247
Other shareholders' equity 11,297 10,909
- ------------------------------------------------------------------------------------------------------------------
Total shareholders' equity 13,766 12,448
- ------------------------------------------------------------------------------------------------------------------
Total $ 37,984 $ 33,230
------------------------------------
</TABLE>
<PAGE>
<TABLE>
Sprint Corporation
CONDENSED CONSOLIDATED CASH FLOW INFORMATION (unaudited)
(millions)
<CAPTION>
Year-to-Date
September 30,
----------------------------
1999 1998(1)
----------------------------
<S> <C> <C>
Operating Activities
Net income (loss) $ (645) $ 657
Equity in net losses of affiliates 244 825
Depreciation and amortization 2,675 1,427
Other, net (902) 471
- ------------------------------------------------------------------------------------------------------
Net cash provided by operating activities 1,372 3,380
- ------------------------------------------------------------------------------------------------------
Investing Activities
Capital expenditures
FON Group (2,455) (2,320)
PCS Group (1,580) (672)
Investments in and loans to affiliates, net (397) (703)
Purchase of fixed wireless broadband companies (271) -
Other, net (81) (14)
- ------------------------------------------------------------------------------------------------------
Net cash used by investing activities (4,784) (3,709)
- ------------------------------------------------------------------------------------------------------
Financing Activities
Increase in debt, net 2,527 699
Proceeds from common stock issued 967 49
Treasury stock purchases (48) (235)
Dividends paid (328) (292)
Other, net 115 54
- ------------------------------------------------------------------------------------------------------
Net cash provided by financing activities 3,233 275
- ------------------------------------------------------------------------------------------------------
Decrease in cash and equivalents (179) (54)
Cash and equivalents at beginning of period 605 102
- ------------------------------------------------------------------------------------------------------
Cash and equivalents at end of period $ 426 $ 48
----------------------------
<FN>
(1) The PCS restructuring occurred in November 1998. Cash flows prior to that date relect the
operations of SprintCom and Sprint's investment in Sprint PCS.
</FN>
</TABLE>
Exhibit 10(a)
COPY AS EXECUTED, TOGETHER WITH
EXHIBIT D AND SHEARMAN & STERLING
OPINION AS SEPARATLY EXECUTED
$3,000,000,000
364-DAY CREDIT AGREEMENT
Dated as of August 6, 1999
Among
SPRINT CORPORATION
and
SPRINT CAPITAL CORPORATION
as Borrowers
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
CITIBANK, N.A.
as Administrative Agent
SALOMON SMITH BARNEY INC.
as Book Manager and Arranger
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
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 11
SECTION 1.03. Accounting Terms 11
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances 11
SECTION 2.02. Making the Revolving Credit Advances 11
SECTION 2.03. The Competitive Bid Advances 12
SECTION 2.04. Fees 15
SECTION 2.05. Optional Termination or Reduction of the
Commitments 15
SECTION 2.06. Repayment of Advances 15
SECTION 2.07. Interest on Revolving Credit Advances 15
SECTION 2.08. Interest Rate Determination 16
SECTION 2.09. Optional Conversion of Revolving
Credit Advances 17
SECTION 2.10. Optional Prepayments of Revolving Credit
Advances 17
SECTION 2.11. Increased Costs 17
SECTION 2.12. Illegality 18
SECTION 2.13. Payments and Computations 18
SECTION 2.14. Taxes 18
SECTION 2.15. Sharing of Payments, Etc. 20
SECTION 2.16. Increase in the Aggregate Commitments 20
SECTION 2.17. Extension of Revolver Termination Date 21
SECTION 2.18. Use of Proceeds 23
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03 23
SECTION 3.02. Conditions Precedent to Each Revolving
Credit Borrowing, Increase Date and
Extension Date 24
SECTION 3.03. Conditions Precedent to Each Competitive
Bid Borrowing 25
SECTION 3.04. Determinations Under Section 3.01 25
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of
the Borrowers 25
<PAGE>
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants 27
SECTION 5.02. Negative Covenants 29
SECTION 5.03. Financial Covenants 30
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default 30
ARTICLE VII
COMPANY GUARANTY
SECTION 7.01. Guaranty 32
SECTION 7.02. Guaranty Absolute 32
SECTION 7.03. Waiver 33
SECTION 7.04. Continuing Guaranty; Assignments 33
SECTION 7.05. Subrogation 33
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01. Authorization and Action 34
SECTION 8.02. Administrative Agent's Reliance, Etc. 34
SECTION 8.03. Citibank and Affiliates 34
SECTION 8.04. Lender Credit Decision 35
SECTION 8.05. Indemnification 35
SECTION 8.06. Successor Administrative Agent 35
SECTION 8.07. Other Agents 35
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. 35
SECTION 9.02. Notices, Etc. 36
SECTION 9.03. No Waiver; Remedies 36
SECTION 9.04. Costs and Expenses 36
SECTION 9.05. Right of Set-off 37
SECTION 9.06. Binding Effect 37
SECTION 9.07. Assignments and Participations 37
SECTION 9.08. Confidentiality 39
SECTION 9.09. Governing Law 39
SECTION 9.10. Execution in Counterparts 39
SECTION 9.11. Jurisdiction, Etc. 39
SECTION 9.12. Waiver of Jury Trial 40
<PAGE>
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 5.02(a) - Existing Liens
Exhibits
Exhibit A - Form of Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Borrowers
<PAGE>
364-DAY CREDIT AGREEMENT
Dated as of August 6, 1999
SPRINT CORPORATION, a Kansas corporation (the
"Company"), SPRINT CAPITAL CORPORATION, a Delaware corporation
("Sprint Capital" and, together with the Company, the
"Borrowers"), the banks, financial institutions and other
institutional lenders (the "Initial Lenders") listed on the
signature pages hereof, and CITIBANK, N.A. ("Citibank"), as
administrative agent (together with any successor administrative
agent appointed pursuant to Section 8.06, the "Administrative
Agent") for the Lenders (as hereinafter defined), SALOMON SMITH
BARNEY INC., as book manager and arranger, 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, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"Advance" means a Revolving Credit Advance or a
Competitive Bid Advance.
"Affiliate" means, as to any Person, any other Person
that, directly or indirectly, controls, is controlled by or
is under common control with such Person or is a director or
officer of such Person. For purposes of this definition,
the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person
means the possession, direct or indirect, of the power to
vote 10% or more of the Voting Stock of such Person or to
direct or cause the direction of the management and policies
of such Person, whether through the ownership of Voting
Stock, by contract or otherwise.
"Administrative Agent's Account" means the account of
the Administrative Agent maintained by the Administrative
Agent at Citibank with its office at 2 Penns Way, Suite 200,
New Castle, Delaware 19720, Account No. 36852248,
Attention: Bank Loan Syndications.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of
a Base Rate Advance and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the
case of a Competitive Bid Advance, the office of such Lender
notified by such Lender to the Administrative Agent as its
Applicable Lending Office with respect to such Competitive
Bid Advance.
"Applicable Margin" means, as of any date, a percentage
per annum determined by reference to the Public Debt Rating
in effect on such date as set forth below:
<PAGE>
2
Public Debt Applicable
Rating Margin for
S&P/Moody's Eurodollar Rate
Advances
Level 1
A /A2 or above 0.240%
Level 2
A- / A3 0.430%
Level 3
BBB+ / Baa1 0.460%
Level 4
BBB / Baa2 0.580%
Level 5
BBB- / Baa3 0.725%
Level 6
Lower than 1.050%
Level 5 or
unrated
"Applicable Percentage" means, as of any date, a
percentage per annum determined by reference to the Public
Debt Rating in effect on such date as set forth below:
Public Debt Applicable
Rating Percentage
S&P/Moody's
Level 1
A / A2 or above 0.060%
Level 2
A- / A3 0.070%
Level 3
BBB+/Baa1 0.090%
Level 4
BBB / Baa2 0.120%
Level 5
BBB- / Baa3 0.150%
Level 6
Lower than 0.200%
Level 5 or
unrated
"Applicable Utilization Fee" means, as of any date on
which the aggregate principal amount of the Advances equals
or exceeds 25% of the aggregate amount of the Lender's
Commitments, a percentage per annum determined by reference
to the Public Debt Rating in effect on such date as set
forth below:
<PAGE>
3
Public Debt Applicable
Rating Percentage
S&P/Moody's
Level 1
A / A2 or above 0.050%
Level 2
A- / A3 0.050%
Level 3
BBB+/Baa1 0.125%
Level 4
BBB / Baa2 0.150%
Level 5
BBB- / Baa3 0.250%
Level 6
Lower than 0.250%
Level 5 or
unrated
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an Eligible
Assignee, and accepted by the Administrative Agent, in
substantially the form of Exhibit C hereto.
"Assuming Lender" means an Increase Assuming Lender or
an Extension Assuming Lender.
"Assumption Agreement" means (a) in the case of any
such agreement delivered pursuant to Section 2.17(c), an
assumption agreement entered into between an Extension
Assuming Lender and a Non-Consenting Lender and accepted by
the Administrative Agent and the Company, in such form as
is agreed among the applicable Extension Assuming Lender,
the applicable Non-Consenting Lender, the Administrative
Agent and the Company and (b) in the case of any such
agreement delivered pursuant to Section 2.16(d), an
assumption agreement entered into between an Increase
Assuming Lender and the Borrowers and accepted by the
Administrative Agent, in form and substance satisfactory to
the Administrative Agent.
"Base Rate" means a fluctuating interest rate per annum
in effect from time to time, which rate per annum shall at
all times be equal to the highest of:
(a) the rate of interest announced publicly
by Citibank in New York, New York, from time to time,
as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of
1% or, if there is no nearest 1/4 of 1%, to the next
higher 1/4 of 1%) of (i) 1/2 of 1% per annum, plus (ii)
the rate obtained by dividing (A) the latest three-week
moving average of secondary market morning offering
rates in the United States for three-month certificates
of deposit of major United States money market banks,
such three-week moving average (adjusted to the basis
of a year of 360 days) being determined weekly on each
Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period
ending on the previous Friday by Citibank on the basis
of such rates reported by certificate of deposit
dealers to and published by the Federal Reserve Bank of
New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates
received by Citibank from three New York certificate of
deposit dealers of recognized standing selected by
Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such
three-week period by the Board of Governors of the
Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including,
but not limited to, any emergency, supplemental or
other marginal reserve requirement) for Citibank with
respect to liabilities consisting of or including
(among other liabilities) three-month U.S. dollar non-
personal time deposits in the United States, plus (iii)
the average during such
<PAGE>
4
three-week period of the annual assessment rates estimated
by Citibank for determining the then current annual
assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring
U.S. dollar deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the
Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance
that bears interest as provided in Section 2.07(a)(i).
"Borrowing" means a Revolving Credit Borrowing or a
Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks
are not required or authorized by law to close in New York
City and, if the applicable Business Day relates to any
Eurodollar Rate Advances, on which dealings are carried on
in the London interbank market.
"Commitment" has the meaning specified in Section 2.01.
"Commitment Date" has the meaning specified in Section
2.16(b).
"Commitment Increase" has the meaning specified in
Section 2.16(a).
"Competitive Bid Advance" means an advance by a Lender
to a Borrower as part of a Competitive Bid Borrowing
resulting from the competitive bidding procedure described
in Section 2.03 and refers to a Fixed Rate Advance or a LIBO
Rate Advance.
"Competitive Bid Borrowing" means a borrowing
consisting of simultaneous Competitive Bid Advances from
each of the Lenders whose offer to make one or more
Competitive Bid Advances as part of such borrowing has been
accepted under the competitive bidding procedure described
in Section 2.03.
"Competitive Bid Reduction" has the meaning specified
in Section 2.01.
"Confidential Information" means information that any
Borrower furnishes to the Administrative Agent or any Lender
in a writing designated as confidential, but does not
include any such information that is or becomes generally
available to the public or that is or becomes available to
the Administrative Agent or such Lender from a source other
than a Borrower.
"Consenting Lender" has the meaning specified in
Section 2.17(b).
"Consolidated" refers to the consolidation of accounts
in accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to
a conversion of Revolving Credit Advances of one Type into
Revolving Credit Advances of the other Type pursuant to
Section 2.08 or 2.09.
"Debt" of any Person means, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price
of property or services (other than trade payables not
overdue by more than 60 days incurred in the ordinary course
of such Person's business), (c) all obligations of such
Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all obligations of such Person as
lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases, (e) all
obligations, contingent or otherwise, of such Person in
respect of acceptances, letters of credit or similar
extensions of credit, (f) all Debt of others referred to in
clauses (a) through (e) above or clause (g) below guaranteed
directly or indirectly in any manner by such Person, or in
effect guaranteed directly or indirectly by such Person
through an agreement (1) to pay or purchase such Debt or to
advance or supply funds for the payment or purchase of such
Debt, (2) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Debt
or to assure the holder of such Debt against loss, (3) to
supply funds to or in any other manner invest in the debtor
(including any agreement to pay for
<PAGE>
5
property or services irrespective of whether such property
is received or such services are rendered) or (4) otherwise to
assure a creditor against loss, and (g) all Debt referred to in
clauses (a) through (f) above secured by (or for which the holder of
such Debt has an existing right, contingent or otherwise, to
be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become
liable for the payment of such Debt.
"Default" means any Event of Default or any event that
would constitute an Event of Default but for the requirement
that notice be given or time elapse or both.
"Domestic Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in
the Assignment and Acceptance or Assumption Agreement
pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify
to the Borrowers and the Administrative Agent.
"EBITDA" means, for any period, net income (or net
loss) (before discontinued operations for such period and
exclusive of (x) the income or loss resulting from
extraordinary items and (y) the income or loss of any Person
accounted for by the Company on the equity method) plus the
sum of (a) interest expense, (b) income tax expense, (c)
depreciation expense and (d) amortization expense, in each
case determined in accordance with GAAP for such period.
"Effective Date" has the meaning specified in Section
3.01.
"Eligible Assignee" means (i) a Lender; (ii) an
Affiliate of a Lender that is a bank or other financial
institution; and (iii) any other bank or financial
institution approved by the Administrative Agent and, unless
an Event of Default has occurred and is continuing at the
time any assignment is effected in accordance with Section
9.07, the Company, such approval not to be unreasonably
withheld or delayed; provided, however, that neither any
Borrower nor an Affiliate of any Borrower shall qualify as
an Eligible Assignee.
"Environmental Action" means any action, suit, demand,
demand letter, claim, notice of non-compliance or violation,
notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating in
any way to any Environmental Law, Environmental Permit or
Hazardous Materials or arising from alleged injury or threat
of injury to health, safety or the environment, including,
without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any
governmental or regulatory authority or any third party for
damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or
foreign statute, law, ordinance, rule, regulation, code,
order, judgment, decree or judicial or agency
interpretation, policy or guidance relating to pollution or
protection of the environment, health, safety or natural
resources, including, without limitation, those relating to
the use, handling, transportation, treatment, storage,
disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization
required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of
Title IV of ERISA is a member of the Company's controlled
group, or under common control with the Company, within the
meaning of Section 414 of the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a
reportable event, within the meaning of Section 4043 of
ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by
the PBGC, or (ii) the requirements of subsection (1) of
Section 4043(b) of ERISA
<PAGE>
6
(without regard to subsection (2) of such Section) are met
with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c)
of ERISA is reasonably expected to occur with respect to such Plan
within the following 30 days; (b) the application for a minimum
funding waiver with respect to a Plan; (c) the provision by the
administrator of any Plan of a notice of intent to terminate
such Plan pursuant to Section 4041(a)(2) of ERISA (including
any such notice with respect to a plan amendment referred to
in Section 4041(e) of ERISA); (d) the cessation of
operations at a facility of the Company or any ERISA
Affiliate in the circumstances described in Section 4062(e)
of ERISA; (e) the withdrawal by the Company or any ERISA
Affiliate from a Multiple Employer Plan during a plan year
for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (f) the conditions for the
imposition of a lien under Section 302(f) of ERISA shall
have been met with respect to any Plan; (g) the adoption of
an amendment to a Plan requiring the provision of security
to such Plan pursuant to Section 307 of ERISA; or (h) the
institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any
event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the
appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any
Lender, the office of such Lender specified as its
"Eurodollar Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Acceptance or Assumption
Agreement pursuant to which it became a Lender (or, if no
such office is specified, its Domestic Lending Office), or
such other office of such Lender as such Lender may from
time to time specify to the Borrowers and the Administrative
Agent.
"Eurodollar Rate" means, for any Interest Period for
each Eurodollar Rate Advance comprising part of the same
Revolving Credit Borrowing, an interest rate per annum equal
to the rate per annum obtained by dividing (a) the average
(rounded upward to the nearest whole multiple of 1/16 of 1%
per annum, if such average is not such a multiple) of the
rate per annum at which deposits in U.S. dollars are offered
by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurodollar Rate
Advance comprising part of such Revolving Credit Borrowing
to be outstanding during such Interest Period and for a
period equal to such Interest Period by (b) a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period. The Eurodollar Rate for any
Interest Period for each Eurodollar Rate Advance comprising
part of the same Revolving Credit Borrowing shall be
determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the
Administrative Agent from the Reference Banks two Business
Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.
"Eurodollar Rate Advance" means a Revolving Credit
Advance that bears interest as provided in Section
2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest
Period for all Eurodollar Rate Advances or LIBO Rate
Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued
from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System
in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with
respect to any other category of liabilities that includes
deposits by reference to which the interest rate on
Eurodollar Rate Advances or LIBO Rate Advances is
determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in
Section 6.01.
"Extension Assuming Lender" has the meaning specified
in Section 2.17(c).
<PAGE>
7
"Extension Date" has the meaning specified in Section
2.17(b).
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of
the quotations for such day on such transactions received by
the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"Five-Year Credit Agreement" means the Five-Year Credit
Agreement dated as of August 7, 1998 among the Company,
Sprint Capital, the lenders parties thereto, Citibank, as
administrative agent, 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, as amended, supplemented or
otherwise modified from time to time.
"Fixed Rate Advances" has the meaning specified in
Section 2.03(a)(i).
"FON Group" has the meaning specified in the Company's
Articles of Incorporation.
"GAAP" has the meaning specified in Section 1.03.
"Guaranteed Obligations" has the meaning specified in
Section 7.01.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive
materials, asbestos-containing materials, polychlorinated
biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated
as hazardous or toxic or as a pollutant or contaminant under
any Environmental Law.
"Increase Assuming Lender" has the meaning specified in
Section 2.16(d).
"Increase Date" has the meaning specified in Section
2.16(a).
"Increasing Lender" has the meaning specified in
Section 2.16(b).
"Information Memorandum" means the information
memorandum dated July 12, 1999 used by the Administrative
Agent in connection with the syndication of the Commitments.
"Insignificant Subsidiary" means any Subsidiary of the
Company that (i) has assets aggregating $500,000 or less and
(ii) does not have any creditor that is the beneficiary of a
guaranty of the Company or any of its Subsidiaries.
"Interest Period" means, for each Eurodollar Rate
Advance comprising part of the same Revolving Credit
Borrowing and each LIBO Rate Advance comprising part of the
same Competitive Bid Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or LIBO Rate Advance or
the date of the Conversion of any Base Rate Advance into
such Eurodollar Rate Advance and ending on the last day of
the period selected by the applicable Borrower pursuant to
the provisions below and, thereafter, with respect to
Eurodollar Rate Advances, each subsequent period commencing
on the last day of the immediately preceding Interest Period
and ending on the last day of the period selected by such
Borrower pursuant to the provisions below. The duration of
each such Interest Period shall be one, two, three or six
months (or if available to all Lenders, nine months), as the
applicable Borrower may, upon notice received by the
Administrative Agent not later than 11:00 A.M. (New York
City time) on the third Business Day prior to the first day
of such Interest Period, select; provided, however, that:
<PAGE>
8
(i) no Borrower may select any Interest
Period that ends after the scheduled Revolver
Termination Date;
(ii) Interest Periods commencing on the same
date for Eurodollar Rate Advances comprising part of
the same Revolving Credit Borrowing or for LIBO Rate
Advances comprising part of the same Competitive Bid
Borrowing shall be of the same duration;
(iii) whenever the last day of any
Interest Period would otherwise occur on a day other
than a Business Day, the last day of such Interest
Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if
such extension would cause the last day of such
Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur
on the next preceding Business Day; and
(iv) whenever the first day of any Interest
Period occurs on a day of an initial calendar month for
which there is no numerically corresponding day in the
calendar month that succeeds such initial calendar
month by the number of months equal to the number of
months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding
calendar month.
"Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"Lenders" means the Initial Lenders and each Person
that shall become a party hereto pursuant to Section 2.16,
Section 2.17 or Section 9.07.
"LIBO Rate" means, for any Interest Period for all LIBO
Rate Advances comprising part of the same Competitive Bid
Borrowing, an interest rate per annum equal to the rate per
annum obtained by dividing (a) the average (rounded upward
to the nearest whole multiple of 1/16 of 1% per annum, if
such average is not such a multiple) of the rate per annum
at which deposits in U.S. dollars are offered by the
principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at
11:00 A.M. (London time) two Business Days before the first
day of such Interest Period in an amount substantially equal
to the amount that would be the Reference Banks' respective
ratable shares of such Borrowing if such Borrowing were to
be a Revolving Credit Borrowing to be outstanding during
such Interest Period and for a period equal to such Interest
Period by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period.
The LIBO Rate for any Interest Period for each LIBO Rate
Advance comprising part of the same Competitive Bid
Borrowing shall be determined by the Administrative Agent on
the basis of applicable rates furnished to and received by
the Administrative Agent from the Reference Banks two
Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.08.
"LIBO Rate Advances" has the meaning specified in
Section 2.03(a)(i).
"Lien" means any lien, security interest or other
charge or encumbrance of any kind, or any other type of
preferential arrangement, including, without limitation, the
lien or retained security title of a conditional vendor and
any easement, right of way or other encumbrance on title to
real property.
"Material Adverse Change" means any material adverse
change in the business, condition (financial or otherwise),
operations, performance, properties or prospects of any
Borrower or any Borrower and its Subsidiaries taken as a
whole.
"Material Adverse Effect" means a material adverse
effect on (a) the business, condition (financial or
otherwise), operations, performance, properties or prospects
of any Borrower or any Borrower and its Subsidiaries taken
as a whole, (b) the rights and remedies of the
Administrative Agent or any Lender under this Agreement or
any Note or (c) the ability of any Borrower to perform its
obligations under this Agreement or any Note.
<PAGE>
9
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, to which the Company
or any ERISA Affiliate is making or accruing an obligation
to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of the Company or any ERISA
Affiliate and at least one Person other than the Company and
the ERISA Affiliates or (b) was so maintained and in respect
of which the Company or any ERISA Affiliate could have
liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Net Worth" means the sum of (a) common stock and other
shareholders' equity, (b) capital in excess of par or stated
value, (c) retained earnings, (d) redeemable preferred
stock, (e) non-redeemable preferred stock and (f) deferred
taxes and deferred income tax credits, in each case of the
Company and its Subsidiaries on a Consolidated basis.
"Non-Consenting Lender" has the meaning specified in
Section 2.17(b).
"Note" means a promissory note of a Borrower payable to
the order of any Lender, in substantially the form of
Exhibit A hereto, evidencing the aggregate indebtedness of
such Borrower to such Lender resulting from the Advances
made by such Lender.
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
"PBGC" means the Pension Benefit Guaranty Corporation
(or any successor).
"PCS Group" has the meaning specified in the Company's
Articles of Incorporation.
"Permitted Liens" means such of the following as to
which no enforcement, collection, execution, levy or
foreclosure proceeding shall have been commenced: (a) Liens
for taxes, assessments and governmental charges or levies to
the extent not required to be paid under Section 5.01(b)
hereof; (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and
other similar Liens arising in the ordinary course of
business securing obligations that are not overdue for a
period of more than 60 days or which are being contested in
good faith by appropriate proceedings and as to which
appropriate reserves are being maintained; (c) pledges or
deposits to secure obligations under workers' compensation
laws or similar legislation or to secure public or statutory
obligations; (d) deposits to secure the performance of bids,
trade contracts (other than for borrowed money), leases,
statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the
ordinary course of business; and (e) easements, rights of
way and other encumbrances on title to real property that do
not render title to the property encumbered thereby
unmarketable or materially adversely affect the use of such
property for its present purposes.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability
company or other entity, or a government or any political
subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple
Employer Plan.
"Public Debt Rating" means, as of any date, the highest
rating that has been most recently announced by either S&P
or Moody's, as the case may be, for any class of non-credit
enhanced long-term senior unsecured debt issued by the
Company. For purposes of the foregoing, (a) if only one of
S&P and Moody's shall have in effect a Public Debt Rating,
the Applicable Margin, the Applicable Percentage and
<PAGE>
10
the Applicable Utilization Fee shall be determined by reference
to the available rating; (b) if neither S&P nor Moody's
shall have in effect a Public Debt Rating, the Applicable
Margin, the Applicable Percentage and the Applicable
Utilization Fee will be set in accordance with Level 6 under
the definition of "Applicable Margin", "Applicable
Percentage" or "Applicable Utilization Fee", as the case may
be; (c) if the ratings established by S&P and Moody's shall
fall within different levels, the Applicable Margin, the
Applicable Percentage and the Applicable Utilization Fee
shall be based upon the higher rating, provided that if the
lower of such ratings is more than one level below the
higher of such ratings, then the Applicable Margin, the
Applicable Percentage and the Applicable Utilization Fee
shall be based on the rating that is the level above the
lower of such ratings; (d) if any rating established by S&P
or Moody's shall be changed, such change shall be effective
as of the date on which such change is first announced
publicly by the rating agency making such change; and (e) if
S&P or Moody's shall change the basis on which ratings are
established, each reference to the Public Debt Rating
announced by S&P or Moody's, as the case may be, shall refer
to the then equivalent rating by S&P or Moody's, as the case
may be.
"Reference Banks" means Citibank, Morgan Guaranty Trust
Company of New York, Bank of America National Trust and
Savings Association and The Chase Manhattan Bank.
"Register" has the meaning specified in Section
9.07(d).
"Required Lenders" means at any time Lenders owed at
least a majority in interest of the then aggregate unpaid
principal amount of the Revolving Credit Advances owing to
Lenders, or, if no such principal amount is then
outstanding, Lenders having at least a majority in interest
of the Commitments.
"Revolver Termination Date" means the earlier of (a)
August 4, 2000, subject to the extension thereof pursuant to
Section 2.17, and (b) the date of termination in whole of
the Commitments pursuant to Section 2.05 or 6.01; provided,
however, that the Revolver Termination Date of any Lender
that is a Non-Consenting Lender to any requested extension
pursuant to Section 2.17 shall be the Revolver Termination
Date in effect immediately prior to the applicable Extension
Date for all purposes of this Agreement.
"Revolving Credit Advance" means an advance by a Lender
to a Borrower as part of a Revolving Credit Borrowing and
refers to a Base Rate Advance or a Eurodollar Rate Advance
(each of which shall be a "Type" of Revolving Credit
Advance).
"Revolving Credit Borrowing" means a borrowing
consisting of simultaneous Revolving Credit Advances of the
same Type made by each of the Lenders pursuant to Section
2.01.
"S&P" means Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of the Company or any ERISA
Affiliate and no Person other than the Company and the ERISA
Affiliates or (b) was so maintained and in respect of which
the Company or any ERISA Affiliate could have liability
under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"Subsidiary" of any Person means any corporation,
partnership, joint venture, limited liability company, trust
or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital
stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of
such limited liability company, partnership or joint venture
or (c) the beneficial interest in such trust or estate is at
the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Telephone Asset" means any asset of a Person used by
such Person to provide telephone or communication services.
<PAGE>
11
"Voting Stock" means capital stock issued by a
corporation, or equivalent interests in any other Person,
the holders of which are ordinarily, in the absence of
contingencies, entitled to appoint or to vote for the
election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has
been suspended by the happening of such a contingency.
SECTION 1.02. Computation of Time Periods. In this
Agreement 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".
SECTION 1.03. Accounting Terms. All accounting terms
not specifically defined herein shall be construed in accordance
with generally accepted accounting principles consistent with
those applied in the preparation of the financial statements
referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each
Lender severally agrees, on the terms and conditions hereinafter
set forth, to make Revolving Credit Advances to any Borrower from
time to time on any Business Day during the period from the
Effective Date until the Revolver Termination Date in an
aggregate amount not to exceed at any time outstanding the amount
set forth opposite such Lender's name on the signature pages
hereof or, if such Lender has entered into any Assignment and
Acceptance or an Assumption Agreement, set forth for such Lender
in the Register maintained by the Administrative Agent pursuant
to Section 9.07(d), as such amount may be reduced pursuant to
Section 2.05 (such Lender's "Commitment"), provided that the
aggregate amount of the Commitments of the Lenders shall be
deemed used from time to time to the extent of the aggregate
amount of the Competitive Bid Advances then outstanding and such
deemed use of the aggregate amount of the Commitments shall be
allocated among the Lenders ratably according to their respective
Commitments (such deemed use of the aggregate amount of the
Commitments being a "Competitive Bid Reduction"). Each Revolving
Credit Borrowing shall be in an aggregate amount of $25,000,000
or an integral multiple of $1,000,000 in excess thereof and shall
consist of Revolving Credit Advances of the same Type made on the
same day by the Lenders ratably according to their respective
Commitments. Notwithstanding any other provision of this
Agreement, more than one Revolving Credit Borrowing may be made
on the same day by either or both Borrowers. Within the limits
of each Lender's Commitment, the Borrowers may borrow under this
Section 2.01, prepay pursuant to Section 2.10 and reborrow under
this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances.
(a) Each Revolving Credit Borrowing shall be made on notice,
given not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Revolving Credit
Borrowing in the case of a Revolving Credit Borrowing consisting
of Eurodollar Rate Advances, or the date of the proposed
Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Base Rate Advances, by a Borrower to the
Administrative Agent, which shall give to each Lender prompt
notice thereof by telecopier or telex. Each such notice of a
Revolving Credit Borrowing (a "Notice of Revolving Credit
Borrowing") shall be by telephone, confirmed immediately in
writing, or telecopier or telex in substantially the form of
Exhibit B-1 hereto, specifying therein the requested (i) date of
such Revolving Credit Borrowing, (ii) Type of Advances comprising
such Revolving Credit Borrowing, (iii) aggregate amount of such
Revolving Credit Borrowing, and (iv) in the case of a Revolving
Credit Borrowing consisting of Eurodollar Rate Advances, initial
Interest Period for each such Revolving Credit Advance. Each
Lender shall, before 12:00 noon (New York City time) on the date
of such Revolving Credit Borrowing, make available for the
account of its Applicable Lending Office to the Administrative
Agent at the Administrative Agent's Account, in same day funds,
such Lender's ratable portion of such Revolving Credit Borrowing.
After the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available on
the date of such Revolving Credit Advance to the Borrower giving
such Notice of Revolving Credit Borrowing at the Administrative
Agent's address referred to in Section 9.02.
<PAGE>
12
(b) Anything in subsection (a) above to the contrary
notwithstanding, no Borrower may select Eurodollar Rate Advances
for any Revolving Credit Borrowing at any time that the
obligation of the Lenders to make Eurodollar Rate Advances shall
then be suspended pursuant to Section 2.08 or 2.12.
(c) Each Notice of Revolving Credit Borrowing shall be
irrevocable and binding on the Borrower giving such Notice of
Revolving Credit Borrowing. In the case of any Revolving Credit
Borrowing that the related Notice of Revolving Credit Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the
Borrower giving such Notice of Revolving Credit Borrowing shall
indemnify each Lender against any loss, cost or expense incurred
by such Lender as a result of any failure to fulfill on or before
the date specified in such Notice of Revolving Credit Borrowing
for such Revolving Credit Borrowing the applicable conditions set
forth in Article III, including, without limitation, any loss
(including loss of Applicable Margin), cost or expense incurred
by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund the Revolving Credit
Advance to be made by such Lender as part of such Revolving
Credit Borrowing when such Revolving Credit Advance, as a result
of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received
notice from a Lender prior to the date of any Revolving Credit
Borrowing that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of such
Revolving Credit Borrowing, the Administrative Agent may assume
that such Lender has made such portion available to the
Administrative Agent on the date of such Revolving Credit
Borrowing in accordance with subsection (a) of this Section 2.02
and the Administrative Agent may, in reliance upon such
assumption, make available to a Borrower giving such Notice of
Revolving Credit Borrowing on such date a corresponding amount.
If and to the extent that such Lender shall not have so made such
ratable portion available to the Administrative Agent, such
Lender and the applicable Borrower severally agree to repay to
the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date
such amount is made available to such Borrower until the date
such amount is repaid to the Administrative Agent, at (i) in the
case of such Borrower, the interest rate applicable at the time
to Revolving Credit Advances comprising such Revolving Credit
Borrowing and (ii) in the case of such Lender, the Federal Funds
Rate. If such Lender shall repay to the Administrative Agent
such corresponding amount, such amount so repaid shall constitute
such Lender's Revolving Credit Advance as part of such Revolving
Credit Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit
Advance to be made by it as part of any Revolving Credit
Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Revolving Credit Advance on the
date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the
Revolving Credit Advance to be made by such other Lender on the
date of any Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each
Lender severally agrees that any Borrower may make Competitive
Bid Borrowings under this Section 2.03 from time to time on any
Business Day during the period from the date hereof until the
date occurring 30 days prior to the Revolver Termination Date in
the manner set forth below; provided that, following the making
of each Competitive Bid Borrowing, the aggregate amount of the
Advances then outstanding shall not exceed the aggregate amount
of the Commitments of the Lenders (computed without regard to any
Competitive Bid Reduction).
(i) Any Borrower may request a Competitive Bid
Borrowing under this Section 2.03 by delivering to the
Administrative Agent, by telecopier or telex, a notice of a
Competitive Bid Borrowing (a "Notice of Competitive Bid
Borrowing"), in substantially the form of Exhibit B-2
hereto, specifying therein the requested (v) date of such
proposed Competitive Bid Borrowing, (w) aggregate amount of
such proposed Competitive Bid Borrowing, (x) in the case of
a Competitive Bid Borrowing consisting of LIBO Rate
Advances, Interest Period, or in the case of a Competitive
Bid Borrowing consisting of Fixed Rate Advances, maturity
date for repayment of each Fixed Rate Advance to be made as
part of such Competitive Bid Borrowing (which maturity date
may not be earlier than the date occurring 7 days after the
date of such Competitive Bid Borrowing or later than the
earlier of (I) 180 days after the date of such Competitive
Bid Borrowing and (II) the Revolver Termination Date), (y)
interest payment date or dates relating thereto, and (z)
other terms (if any) to be applicable to such Competitive
Bid Borrowing, not later than 10:00 A.M. (New York City
time) (A) at least one Business Day prior to the date of the
proposed Competitive Bid Borrowing, if the applicable
Borrower shall specify in the Notice of Competitive Bid
<PAGE>
13
Borrowing that the rates of interest to be offered by the
Lenders shall be fixed rates per annum (the Advances
comprising any such Competitive Bid Borrowing being referred
to herein as "Fixed Rate Advances") and (B) at least four
Business Days prior to the date of the proposed Competitive
Bid Borrowing, if the applicable Borrower shall instead
specify in the Notice of Competitive Bid Borrowing that the
rates of interest to be offered by the Lenders are to be
based on the LIBO Rate (the Advances comprising such
Competitive Bid Borrowing being referred to herein as "LIBO
Rate Advances"). The Administrative Agent shall in turn
promptly notify each Lender of each request for a
Competitive Bid Borrowing received by it from a Borrower by
sending such Lender a copy of the related Notice of
Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more
Competitive Bid Advances to the applicable Borrower as part
of such proposed Competitive Bid Borrowing at a rate or
rates of interest specified by such Lender in its sole
discretion, by notifying the Administrative Agent (which
shall give prompt notice thereof to such Borrower), before
9:30 A.M. (New York City time) on the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of Fixed Rate Advances and before 10:00
A.M. (New York City time) three Business Days before the
date of such proposed Competitive Bid Borrowing, in the case
of a Competitive Bid Borrowing consisting of LIBO Rate
Advances, of the minimum amount and maximum amount of each
Competitive Bid Advance which such Lender would be willing
to make as part of such proposed Competitive Bid Borrowing
(which amounts may, subject to the proviso to the first
sentence of this Section 2.03(a), exceed such Lender's
Commitment, if any), the rate or rates of interest therefor
and such Lender's Applicable Lending Office with respect to
such Competitive Bid Advance; provided that if the
Administrative Agent in its capacity as a Lender shall, in
its sole discretion, elect to make any such offer, it shall
notify the applicable Borrower of such offer at least 30
minutes before the time and on the date on which notice of
such election is to be given to the Administrative Agent by
the other Lenders. If any Lender shall elect not to make
such an offer, such Lender shall so notify the
Administrative Agent, before 10:00 A.M. (New York City time)
on the date on which notice of such election is to be given
to the Administrative Agent by the other Lenders, and such
Lender shall not be obligated to, and shall not, make any
Competitive Bid Advance as part of such Competitive Bid
Borrowing; provided that the failure by any Lender to give
such notice shall not cause such Lender to be obligated to
make any Competitive Bid Advance as part of such proposed
Competitive Bid Borrowing.
(iii) The Borrower giving the Notice of Competitive
Bid Borrowing shall, in turn, before 10:30 A.M. (New York
City time) on the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing
consisting of Fixed Rate Advances and before 11:00 A.M. (New
York City time) three Business Days before the date of such
proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances,
either:
(x) cancel such Competitive Bid Borrowing by
giving the Administrative Agent notice to that effect,
or
(y) accept one or more of the offers made by
any Lender or Lenders pursuant to paragraph (ii) above,
in its sole discretion, by giving notice to the
Administrative Agent of the amount of each Competitive
Bid Advance (which amount shall be equal to or greater
than the minimum amount, and equal to or less than the
maximum amount, notified to the applicable Borrower by
the Administrative Agent on behalf of such Lender for
such Competitive Bid Advance pursuant to paragraph (ii)
above) to be made by each Lender as part of such
Competitive Bid Borrowing, and reject any remaining
offers made by Lenders pursuant to paragraph (ii) above
by giving the Administrative Agent notice to that
effect. The Borrower giving the Notice of Competitive
Bid Borrowing shall accept the offers made by any
Lender or Lenders to make Competitive Bid Advances in
order of the lowest to the highest rates of interest
offered by such Lenders. If two or more Lenders have
offered the same interest rate, the amount to be
borrowed at such interest rate will be allocated among
such Lenders in proportion to the maximum amount that
each such Lender offered at such interest rate.
<PAGE>
14
(iv) If the applicable Borrower notifies the
Administrative Agent that such Competitive Bid Borrowing is
canceled pursuant to paragraph (iii)(x) above, the
Administrative Agent shall give prompt notice thereof to the
Lenders and such Competitive Bid Borrowing shall not be
made.
(v) If the applicable Borrower accepts one or more of
the offers made by any Lender or Lenders pursuant to
paragraph (iii)(y) above, the Administrative Agent shall in
turn promptly notify (A) each Lender that has made an offer
as described in paragraph (ii) above, of the date and
aggregate amount of such Competitive Bid Borrowing and
whether or not any offer or offers made by such Lender
pursuant to paragraph (ii) above have been accepted by the
applicable Borrower, (B) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid
Borrowing, of the amount of each Competitive Bid Advance to
be made by such Lender as part of such Competitive Bid
Borrowing, and (C) each Lender that is to make a Competitive
Bid Advance as part of such Competitive Bid Borrowing, upon
receipt, that the Administrative Agent has received forms of
documents appearing to fulfill the applicable conditions set
forth in Article III. Each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid
Borrowing shall, before 12:00 noon (New York City time) on
the date of such Competitive Bid Borrowing specified in the
notice received from the Administrative Agent pursuant to
clause (A) of the preceding sentence or any later time when
such Lender shall have received notice from the
Administrative Agent pursuant to clause (C) of the preceding
sentence, make available for the account of its Applicable
Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such
Lender's portion of such Competitive Bid Borrowing. Upon
fulfillment of the applicable conditions set forth in
Article III and after receipt by the Administrative Agent of
such funds, the Administrative Agent will promptly make such
funds available to the applicable Borrower at the
Administrative Agent's address referred to in Section 9.02.
Promptly after each Competitive Bid Borrowing the
Administrative Agent will notify each Lender of the amount
of the Competitive Bid Borrowing, the consequent Competitive
Bid Reduction and the dates upon which such Competitive Bid
Reduction commenced and will terminate.
(vi) If the applicable Borrower notifies the
Administrative Agent that it accepts one or more of the
offers made by any Lender or Lenders pursuant to paragraph
(iii)(y) above, such notice of acceptance shall be
irrevocable and binding on such Borrower. The Borrower
giving the Notice of Competitive Bid Borrowing shall
indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to
fulfill on or before the date specified in the related
Notice of Competitive Bid Borrowing for such Competitive Bid
Borrowing the applicable conditions set forth in Article
III, including, without limitation, any loss, cost or
expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such
Lender to fund the Competitive Bid Advance to be made by
such Lender as part of such Competitive Bid Borrowing when
such Competitive Bid Advance, as a result of such failure,
is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount of $25,000,000 or an integral multiple of $1,000,000 in
excess thereof and, following the making of each Competitive Bid
Borrowing, the Borrowers shall be in compliance with the
limitation set forth in the proviso to the first sentence of
subsection (a) above.
(c) Within the limits and on the conditions set forth in
this Section 2.03, the Borrowers may from time to time borrow
under this Section 2.03, repay or prepay pursuant to subsection
(d) below, and reborrow under this Section 2.03.
(d) The applicable Borrower shall repay to the
Administrative Agent for the account of each Lender that has made
a Competitive Bid Advance, on the maturity date of each
Competitive Bid Advance (such maturity date being that specified
by such Borrower for repayment of such Competitive Bid Advance in
the related Notice of Competitive Bid Borrowing delivered
pursuant to subsection (a)(i) above), the then unpaid principal
amount of such Competitive Bid Advance. No Borrower shall have
any right to prepay any principal amount of any Competitive Bid
Advance unless, and then only on the terms, specified by the
applicable Borrower for such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to
subsection (a)(i) above.
<PAGE>
15
(e) The applicable Borrower shall pay interest on the
unpaid principal amount of each Competitive Bid Advance from the
date of such Competitive Bid Advance to the date the principal
amount of such Competitive Bid Advance is repaid in full, at the
rate of interest for such Competitive Bid Advance specified by
the Lender making such Competitive Bid Advance in its notice with
respect thereto delivered pursuant to subsection (a)(ii) above,
payable on the interest payment date or dates specified by such
Borrower for such Competitive Bid Advance in the related Notice
of Competitive Bid Borrowing delivered pursuant to subsection
(a)(i) above. Upon the occurrence and during the continuance of
an Event of Default, such Borrower shall pay interest on the
amount of unpaid principal of and interest on each Competitive
Bid Advance owing to a Lender, payable in arrears on the date or
dates interest is payable thereon, at a rate per annum equal at
all times to 2% per annum above the rate per annum required to be
paid on such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrowers
agree to pay to the Administrative Agent for the account of each
Lender a facility fee on the aggregate amount of such Lender's
Commitment from the date hereof in the case of each Initial
Lender and from the effective date specified in the Assignment
and Acceptance or Assumption Agreement pursuant to which it
became a Lender in the case of each other Lender until the
Revolver Termination Date (or, if applicable, until such Lender's
Commitment has been assigned to another Lender) at a rate per
annum equal to the Applicable Percentage in effect from time to
time, payable in arrears quarterly on the last day of each March,
June, September and December, commencing September 30, 1999, and
on the Revolver Termination Date.
(b) Administrative Agent's Fees. The Borrowers shall pay
to the Administrative Agent for its own account such fees as may
from time to time be agreed among the Borrowers and the
Administrative Agent.
SECTION 2.05. Optional Termination or Reduction of the
Commitments. The Company shall have the right, upon at least
three Business Days' notice to the Administrative Agent, to
terminate in whole or reduce ratably in part the aggregate unused
Commitments of the Lenders; provided that each partial reduction
shall be in an aggregate amount of $25,000,000 or an integral
multiple of $1,000,000 in excess thereof or, if less, the
aggregate amount of all Commitments at such time.
SECTION 2.06. Repayment of Advances. (a) Revolving
Credit Advances. Each Borrower shall repay to the Administrative
Agent, for the ratable account of the Lenders, on the Revolver
Termination Date the aggregate principal amount of all Revolving
Credit Advances made to it outstanding on such date.
(b) Competitive Bid Advances. Each Borrower shall
repay to the Administrative Agent, for the account of each Lender
that has made a Competitive Bid Advance, the aggregate
outstanding principal amount of each Competitive Bid Advance made
to such Borrower and owing to such Lender on the earlier of (i)
the maturity date therefor, specified in the related Notice of
Competitive Bid Borrowing delivered pursuant to Section
2.03(a)(i) and (ii) the Revolver Termination Date.
` SECTION 2.07. Interest on Revolving Credit Advances.
(a) Scheduled Interest. Each Borrower shall pay interest on the
unpaid principal amount of each Revolving Credit Advance made to
it owing to each Lender from the date of such Revolving Credit
Advance until such principal amount shall be paid in full, at the
following rates per annum:
(i) Base Rate Advances. During such periods as such
Revolving Credit Advance is a Base Rate Advance, a rate per
annum equal at all times to the Base Rate in effect from
time to time, payable in arrears quarterly on the last day
of each March, June, September and December during such
periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as
such Revolving Credit Advance is a Eurodollar Rate Advance,
a rate per annum equal at all times during each Interest
Period for such Revolving Credit Advance to the sum of (x)
the Eurodollar Rate for such Interest Period for such
Revolving Credit Advance plus (y) the Applicable Margin in
effect from time to time plus (z) the Applicable Utilization
Fee, payable in arrears on the last day of such Interest
Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such
Interest Period every
<PAGE>
16
three months from the first day of such Interest Period and on
the date such Eurodollar Rate Advance shall be Converted or
paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a) or
Section 6.01(e), each Borrower shall pay interest on (i) the
unpaid principal amount of each Revolving Credit Advance made to
it and owing to each Lender, payable in arrears on the dates
referred to in clause (a)(i) or (a)(ii) above, at a rate per
annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Revolving Credit Advance pursuant to
clause (a)(i) or (a)(ii) above and (ii) to the fullest extent
permitted by law, the amount of any interest, fee or other amount
payable hereunder that is not paid when due, from the date such
amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full
and on demand, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid on Base Rate
Advances pursuant to clause (a)(i) above.
SECTION 2.08. Interest Rate Determination. (a) Each
Reference Bank agrees to furnish to the Administrative Agent
timely information for the purpose of determining each Eurodollar
Rate and each LIBO Rate. If any one or more of the Reference
Banks shall not furnish such timely information to the
Administrative Agent for the purpose of determining any such
interest rate, the Administrative Agent shall determine such
interest rate on the basis of timely information furnished by the
remaining Reference Banks. The Administrative Agent shall give
prompt notice to the Borrowers and the Lenders of the applicable
interest rate determined by the Administrative Agent for purposes
of Section 2.07(a)(i) or (ii) , and the rate, if any, furnished
by each Reference Bank for the purpose of determining the
interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Administrative Agent that the
Eurodollar Rate for any Interest Period for such Advances will
not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurodollar Rate
Advances for such Interest Period, the Administrative Agent shall
forthwith so notify the Borrowers and the Lenders, whereupon (i)
each Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a
Base Rate Advance, and (ii) the obligation of the Lenders to
make, or to Convert Revolving Credit Advances into, Eurodollar
Rate Advances shall be suspended until the Administrative Agent
shall notify the Borrowers and the Lenders that the circumstances
causing such suspension no longer exist.
(c) If any Borrower shall fail to select the duration of
any Interest Period for any Eurodollar Rate Advances in
accordance with the provisions contained in the definition of
"Interest Period" in Section 1.01, the Administrative Agent will
forthwith so notify such Borrower and the Lenders and such
Advances will automatically, on the last day of the then existing
Interest Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall
be reduced, by payment or prepayment or otherwise, to less than
$25,000,000, such Advances shall automatically Convert into Base
Rate Advances.
(e) Upon the occurrence and during the continuance of any
Event of Default under Section 6.01(a) or Section 6.01(e), (i)
each Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a
Base Rate Advance and (ii) the obligation of the Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
(f) If fewer than two Reference Banks furnish timely
information to the Administrative Agent for determining the
Eurodollar Rate or LIBO Rate for any Eurodollar Rate Advances or
LIBO Rate Advances, as the case may be,
(i) the Administrative Agent shall forthwith notify
the Borrowers and the Lenders that the interest rate cannot
be determined for such Eurodollar Rate Advances or LIBO Rate
Advances, as the case may be,
(ii) with respect to Eurodollar Rate Advances, each
such Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate
Advance (or if such Advance is then a Base Rate Advance,
will continue as a Base Rate Advance), and
<PAGE>
17
(iii) the obligation of the Lenders to make
Eurodollar Rate Advances or LIBO Rate Advances or to Convert
Revolving Credit Advances into Eurodollar Rate Advances
shall be suspended until the Administrative Agent shall
notify the Borrowers and the Lenders that the circumstances
causing such suspension no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit
Advances. Each Borrower may on any Business Day, upon notice
given to the Administrative Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections
2.08 and 2.12, Convert all Revolving Credit Advances made to it
of one Type comprising the same Borrowing into Revolving Credit
Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances
shall be made only on the last day of an Interest Period for such
Eurodollar Rate Advances, and any Conversion of Base Rate
Advances into Eurodollar Rate Advances shall be in an amount not
less than the minimum amount specified in Section 2.01. Each
such notice of a Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii)
the Revolving Credit Advances to be Converted, and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the
initial Interest Period for each such Advance. Each notice of
Conversion shall be irrevocable and binding on the Borrower
giving such notice.
SECTION 2.10. Optional Prepayments of Revolving Credit
Advances. Each Borrower may, upon notice by 11:00 A.M. (New York
City time) at least two Business Days' prior to the date of the
proposed prepayment (in the case of Eurodollar Rate Advances) and
notice by 11:00 A.M. (New York City time) on the date of the
proposed prepayment (in the case of Base Rate Advances) to the
Administrative Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given
such Borrower shall, prepay the outstanding principal amount of
the Revolving Credit Advances made to it comprising part of the
same Revolving Credit Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on
the principal amount prepaid; provided, however, that (x) each
partial prepayment shall be in an aggregate principal amount of
$25,000,000 or an integral multiple of $1,000,000 in excess
thereof and (y) in the event of any such prepayment of a
Eurodollar Rate Advance, such Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section
9.04(c).
SECTION 2.11. Increased Costs. (a) If, due to either
(i) the introduction of or any change in or in the interpretation
of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental
authority (whether or not having the force of law) after the date
hereof, in the case of Eurodollar Rate Advances, or after the
date of any Lender's offer to make a Competitive Bid Advance
pursuant to Section 2.03(a)(ii), in the case of LIBO Rate
Advances, there shall be any increase in the cost to any Lender
of agreeing to make or making, funding or maintaining Eurodollar
Rate Advances or LIBO Rate Advances (excluding for purposes of
this Section 2.11 any such increased costs resulting from (i)
Taxes or Other Taxes (as to which Section 2.14 shall govern) and
(ii) changes in the basis of taxation of overall net income or
overall gross income by the United States or by the foreign
jurisdiction or state under the laws of which such Lender is
organized or has its Applicable Lending Office or any political
subdivision thereof), then the Borrowers shall from time to time,
upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the
account of such Lender additional amounts sufficient to
compensate such Lender for such increased cost. A certificate as
to the amount of such increased cost, submitted to the Borrowers
and the Administrative Agent by such Lender, shall be conclusive
and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law
or regulation or any guideline or request from any central bank
or other governmental authority (whether or not having the force
of law) affects or would affect the amount of capital required or
expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is
increased by or based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this type,
then, upon demand by such Lender (with a copy of such demand to
the Administrative Agent), the Borrowers shall pay to the
Administrative Agent for the account of such Lender, from time to
time as specified by such Lender, additional amounts sufficient
to compensate such Lender or such corporation in the light of
such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the
existence of such Lender's commitment to lend hereunder. A
<PAGE>
18
certificate as to such amounts submitted to the Borrowers and
the Administrative Agent by such Lender shall be conclusive and
binding for all purposes, absent manifest error.
SECTION 2.12. Illegality. Notwithstanding any other
provision of this Agreement, if any Lender shall notify the
Administrative Agent that the introduction of or any change in or
in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that
it is unlawful, for such Lender or its Eurodollar Lending Office
to perform its obligations hereunder to make Eurodollar Rate
Advances or LIBO Rate Advances or to fund or maintain Eurodollar
Rate Advances or LIBO Rate Advances hereunder, (i) each LIBO Rate
Advance of such Lender and each Eurodollar Rate Advance will
automatically, upon such demand, Convert into a Base Rate Advance
or an Advance that bears interest at the rate set forth in
Section 2.07(a)(i), as the case may be, and (ii) the obligation
of such Lender to make LIBO Rate Advances and the obligation of
the Lenders to make Eurodollar Rate Advances or to Convert
Revolving Credit Advances into Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the
Borrowers and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) Each
Borrower shall make each payment hereunder and under the Notes
not later than 11:00 A.M. (New York City time) on the day when
due in U.S. dollars to the Administrative Agent at the
Administrative Agent's Account in same day funds. The
Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or
interest or facility fees ratably (other than amounts payable
pursuant to Section 2.03, 2.11, 2.14 or 9.04(c)) to the Lenders
for the account of their respective Applicable Lending Offices,
and like funds relating to the payment of any other amount
payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance
of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 9.07(c),
from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) All computations of interest based on the Base Rate
shall be made by the Administrative Agent on the basis of a year
of 365 or 366 days, as the case may be, and all computations of
interest based on the Eurodollar Rate or the Federal Funds Rate
and of facility fees and utilization fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each
case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such
interest or fees are payable. Each determination by the
Administrative Agent of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall
be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the
computation of payment of interest or fees, as the case may be;
provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances or LIBO Rate
Advances to be made in the next following calendar month, such
payment shall be made on the next preceding Business Day.
(d) Unless the Administrative Agent shall have received
notice from the applicable Borrower prior to the date on which
any payment is due to the Lenders hereunder that such Borrower
will not make such payment in full, the Administrative Agent may
assume that such Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to
each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent the applicable Borrower
shall not have so made such payment in full to the Administrative
Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender
repays such amount to the Administrative Agent, at the Federal
Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by
each Borrower hereunder or under the Notes shall be made, in
accordance with Section 2.13, free and clear of and without
deduction for any and all
<PAGE>
19
present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding,
in the case of each Lender and the Administrative Agent, taxes imposed
on its overall net income, and franchise taxes imposed on it in lieu
of net income taxes, by the jurisdiction under the laws of which such
Lender or the Administrative Agent (as the case may be) is organized
or any political subdivision thereof and, in the case of each Lender,
taxes imposed on its overall net income, and franchise taxes
imposed on it in lieu of net income taxes, by the jurisdiction of
such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If any Borrower shall be
required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any Note to any Lender or the
Administrative Agent, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under
this Section 2.14) such Lender or the Administrative Agent (as
the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) such
Borrower shall make such deductions and (iii) such Borrower shall
pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.
(b) In addition, each Borrower shall pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies that arise from any payment made
hereunder or under the Notes or from the execution, delivery or
registration of, performing under, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) Each Borrower shall indemnify each Lender and the
Administrative Agent for and hold it harmless against the full
amount of Taxes or Other Taxes imposed on or paid by such Lender
or the Administrative Agent (as the case may be) and any
liability (including penalties, interest and expenses, but
excluding items specifically excluded from the definition of
"Taxes" in subsection (a) above) arising therefrom or with
respect thereto. This indemnification shall be made within 30
days from the date such Lender or the Administrative Agent (as
the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes,
each Borrower shall furnish to the Administrative Agent, at its
address referred to in Section 9.02, the original or a certified
copy of a receipt evidencing such payment. In the case of any
payment hereunder or under the Notes by or on behalf of any
Borrower through an account or branch outside the United States
or by or on behalf of such Borrower by a payor that is not a
United States person, if such Borrower determines that no Taxes
are payable in respect thereof, such Borrower shall furnish, or
shall cause such payor to furnish, to the Administrative Agent,
at such address, an opinion of counsel acceptable to the
Administrative Agent stating that such payment is exempt from
Taxes. For purposes of this subsection (d) and subsection (e),
the terms "United States" and "United States person" shall have
the meanings specified in Section 7701 of the Internal Revenue
Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its
execution and delivery of this Agreement in the case of each
Initial Lender and on the date of the Assignment and Acceptance
or the Assumption Agreement pursuant to which it becomes a Lender
in the case of each other Lender, and from time to time
thereafter as requested in writing by the Borrowers (but only so
long as such Lender remains lawfully able to do so), shall
provide each of the Administrative Agent and the Borrowers with
two (or such other number as may be prescribed by applicable laws
or regulations) original, duly completed Internal Revenue Service
forms 1001 or 4224, as appropriate, or any successor or other
forms prescribed by the Internal Revenue Service, certifying that
such Lender is exempt from or entitled to a reduced rate of
United States withholding tax on payments pursuant to this
Agreement or the Notes. If the form provided by a Lender at the
time such Lender first becomes a party to this Agreement
indicates a United States interest withholding tax rate in excess
of zero, withholding tax at such rate shall be considered
excluded from Taxes unless and until such Lender provides the
appropriate forms certifying that a lesser rate applies,
whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form;
provided, however, that, if at the date of the Assignment and
Acceptance or the Assumption Agreement pursuant to which a Lender
assignee becomes a party to this Agreement, the Lender assignor
was entitled to payments under subsection (a) in respect of
United States withholding tax with respect to interest paid at
such date, then, to such extent, the term Taxes shall include
United States withholding tax at a rate equal to the lesser of
(i) the rate of United States withholding tax, if any, included
in Taxes in respect of the Lender assignor on such date or (ii)
the rate of United States withholding tax, if any, applicable
with respect to the Lender assignee on such date. If any form or
document referred to in this subsection
<PAGE>
20
(e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required by
Internal Revenue Service form 1001 or 4224, or any successor or other
forms prescribed by the Internal Revenue Service, that the Lender
reasonably considers to be confidential, the Lender shall give
notice thereof to the Borrowers and shall not be obligated to
include in such form or document such confidential information.
(f) For any period with respect to which a Lender has
failed to provide the Borrowers with the appropriate form
described in Section 2.14(e) (other than if such failure is due
to a change in law occurring subsequent to the date on which a
form originally was required to be provided, or if such form
otherwise is not required under subsection (e) above), such
Lender shall not be entitled to indemnification under Section
2.14(a) or (c) with respect to Taxes imposed by the United States
by reason of such failure; provided, however, that should a
Lender become subject to Taxes because of its failure to deliver
a form required hereunder, the Borrowers shall take such steps as
the Lender shall reasonably request to assist the Lender to
recover such Taxes.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.14 agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Eurodollar
Lending Office if the making of such a change would avoid the
need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to such
Lender.
SECTION 2.15. Sharing of Payments, Etc. If any Lender
shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on account of
the Revolving Credit Advances owing to it (other than pursuant to
Section 2.11, 2.14 or 9.04(c)) in excess of its ratable share of
payments on account of the Revolving Credit Advances obtained by
all the Lenders, such Lender shall forthwith purchase from the
other Lenders such participations in the Revolving Credit
Advances owing to them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each
of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion
of (i) the amount of such Lender's required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender
in respect of the total amount so recovered. Each Borrower
agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.15 may, to the fullest extent
permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully
as if such Lender were the direct creditor of such Borrower in
the amount of such participation.
SECTION 2.16. Increase in the Aggregate Commitments.
(a) The Borrowers may, at any time but in any event not more
than once in any calendar year prior to the Revolver Termination
Date, by notice to the Administrative Agent, request that the
aggregate amount of the Commitments be increased by $25,000,000
or an integral multiple of $25,000,000 in excess thereof (each a
"Commitment Increase") to be effective as of a date that is at
least 90 days prior to the scheduled Revolver Termination Date
then in effect (the "Increase Date") as specified in the related
notice to the Administrative Agent; provided, however, that (i)
in no event shall the aggregate amount of the Commitments at any
time exceed $3,500,000,000, (ii) no Default shall have occurred
and be continuing as of the date of such request and (iii) all of
the applicable conditions set forth in Article III shall be
satisfied as of the applicable Increase Date.
(b) The Administrative Agent shall promptly notify the
Lenders of a request by the Borrowers for a Commitment Increase,
which notice shall include (i) the proposed amount of such
requested Commitment Increase, (ii) the proposed Increase Date
and (iii) the date by which Lenders wishing to participate in the
Commitment Increase must commit to an increase in the amount of
their respective Commitments (the "Commitment Date"). Each
Lender that is willing to participate in such requested
Commitment Increase (each an "Increasing Lender") shall, in its
sole discretion, give written notice to the Administrative Agent
on or prior to the Commitment Date of the amount by which it is
willing to increase its Commitment. If the Lenders notify the
Administrative Agent that they are willing to increase the amount
of their respective Commitments by an aggregate amount that
exceeds the amount of the requested Commitment Increase, the
requested Commitment Increase shall
<PAGE>
21
be allocated among the Lenders willing to participate therein in such
amounts as are agreed between the Borrowers and the Administrative Agent.
(c) Promptly following each Commitment Date, the
Administrative Agent shall notify the Borrowers as to the amount,
if any, by which the Lenders are willing to participate in the
requested Commitment Increase. If the aggregate amount by which
the Lenders are willing to participate in any requested
Commitment Increase on any such Commitment Date is less than the
requested Commitment Increase, then the Borrowers may extend
offers to one or more Eligible Assignees to participate in any
portion of the requested Commitment Increase that has not been
committed to by the Lenders as of the applicable Commitment Date;
provided, however, that the Commitment of each such Eligible
Assignee, when aggregated with the commitment of such Person to
lend under the Five-Year Credit Agreement, shall in no event be
less than $10,000,000.
(d) On each Increase Date, each Eligible Assignee that
accepts an offer to participate in a requested Commitment
Increase in accordance with Section 2.16(c) (each an "Increase
Assuming Lender") shall become a Lender party to this Agreement
as of such Increase Date and the Commitment of each Increasing
Lender for such requested Commitment Increase shall be so
increased by such amount (or by the amount allocated to such
Lender pursuant to the last sentence of Section 2.16(b)) as of
such Increase Date; provided, however, that the Administrative
Agent shall have received on or before such Increase Date the
following, each dated such date:
(i) (A) certified copies of resolutions of the board
of directors of each Borrower or the Executive Committee of
such board approving the amount of the Commitments after
giving effect to the Commitment Increase, (B) a certificate,
signed by a duly authorized Responsible Officer of each
Borrower, stating that all of the applicable conditions in
Article III have been satisfied and (C) an opinion of
counsel for the Borrowers, in substantially the form of
Exhibit C hereto;
(ii) an Assumption Agreement from each Increase
Assuming Lender, duly executed by such Increase Assuming
Lender, the Administrative Agent and the Borrowers; and
(iii) confirmation from each Increasing Lender of
the increase in the amount of its Commitment in a writing
satisfactory to the Borrowers and the Administrative Agent.
On each Increase Date, upon fulfillment of the conditions set
forth in the immediately preceding sentence of this Section
2.16(d), the Administrative Agent shall notify the Lenders
(including, without limitation, each Increase Assuming Lender)
and the Borrowers, on or before 1:00 P.M. (New York City time),
by telecopier or telex, of the occurrence of the Commitment
Increase to be effected on such Increase Date and shall record in
the Register the relevant information with respect to each
Increasing Lender and each Increase Assuming Lender on such date.
In addition, on each Increase Date, each of the Increasing
Lenders and the Increase Assuming Lenders will purchase and
assume from the other Lenders such interests in the Revolving
Credit Advances made by such other Lenders and outstanding on
such Increase Date as shall be necessary so that, after giving
effect to such purchases and assumptions, each of the Lenders
(including the Increasing Lenders and the Increase Assuming
Lenders) will hold their respective pro rata shares of all
Revolving Credit Advances outstanding on such Increase Date (such
purchases and assumptions to be effected by each of the
Increasing Lenders and the Increase Assuming Lenders making an
amount equal to such respective pro rata shares available for the
accounts of their Applicable Lending Offices to the
Administrative Agent at the Administrative Agent's Account, in
same day funds). Each Borrower hereby agrees to each of the
purchases and assumptions described in the immediately preceding
sentence.
SECTION 2.17. Extension of Revolver Termination Date.
(a) At least 45 days but not more than 60 days prior to the
scheduled Revolver Termination Date then in effect, the
Borrowers, by written notice to the Administrative Agent, may
request an extension of such Revolver Termination Date for a
period of 364 days from its then scheduled expiration. The
Administrative Agent shall promptly notify each Lender of such
request, and each Lender shall in turn, in its sole discretion,
not earlier than 30 days but at least 20 days prior to the
scheduled Revolver Termination Date then in effect, notify the
Administrative Agent in writing as to whether such Lender will
consent to such extension. If any Lender shall fail to notify
the Administrative Agent in writing of its consent to, or refusal
of, any such request for extension of the Revolver Termination
Date at least 20 days prior to the scheduled Revolver Termination
Date then in effect, such Lender shall be deemed to be a Non-
Consenting Lender with respect to such request. The
Administrative Agent shall notify the Borrowers in writing not
later than 15 days prior to the
<PAGE>
22
scheduled Revolver Termination Date then in effect of the decision of
the Lenders regarding the Borrowers' request for an extension of such
Revolver Termination Date. It is understood and agreed that no Lender
shall have any obligation whatsoever to agree to any request made by the
Borrowers for an extension of the Revolver Termination Date.
(b) If all of the Lenders consent in writing to any
such request in accordance with subsection (a) of this Section
2.17, upon fulfillment of the applicable conditions set forth in
Article III, the Revolver Termination Date in effect at such time
shall, effective as at such Revolver Termination Date (the
"Extension Date"), be extended for a period of 364 days from such
Extension Date. If Lenders holding at least a majority in
interest of the aggregate Commitments at such time (after giving
effect to any assumptions of the Commitments of Non-Consenting
Lenders in accordance with subsection (c) of this Section 2.17)
consent in writing to any such request in accordance with
subsection (a) of this Section 2.17, the Revolver Termination
Date in effect at such time shall, upon fulfillment of the
applicable conditions set forth in Article III, effective as at
the applicable Extension Date, be extended as to those Lenders
that so consented (each a "Consenting Lender") but shall not be
extended as to any other Lender (each a "Non-Consenting Lender").
To the extent that the Revolver Termination Date is not extended
as to any Lender pursuant to this Section 2.17 and the Commitment
of such Lender is not assumed in accordance with subsection (c)
of this Section 2.17 on or prior to the applicable Extension
Date, the Commitment of such Non-Consenting Lender shall
automatically terminate in whole on such unextended Revolver
Termination Date without any further notice or other action by
the Borrowers, such Lender or any other Person; provided that
such Non-Consenting Lender's rights under Sections 2.11, 2.14
and 9.04, and its obligations under Section 8.05, shall survive
the Revolver Termination Date for such Lender as to matters
occurring prior to such Extension Date.
(c) If less than all of the Lenders consent to any
such request pursuant to subsection (a) of this Section 2.17, the
Agent shall promptly so notify the Consenting Lenders, and each
Consenting Lender may, in its sole discretion, give written
notice to the Agent not later than 10 days prior to the Revolver
Termination Date of the amount of the Non-Consenting Lenders'
Commitments for which it is willing to accept an assignment. If
the Consenting Lenders notify the Agent that they are willing to
accept assignments of Commitments in an aggregate amount that
exceeds the amount of the Commitments of the Non-Consenting
Lenders, such Commitments shall be allocated among the Consenting
Lenders willing to accept such assignments in such amounts as are
agreed between the Borrowers and the Agent. If after giving
effect to the assignments described above there remains any
Commitments of Non-Consenting Lenders, the Borrowers may arrange
for one or more Consenting Lenders or other Eligible Assignees to
assume, effective as of the Extension Date, any Non-Consenting
Lender's Commitment and all of the rights and obligations of such
Non-Consenting Lender under this Agreement thereafter arising
(each Eligible Assignee assuming the Commitment of one or more
Non-Consenting Lenders pursuant to this Section 2.17 being an
"Extension Assuming Lender"), without recourse to or warranty by,
or expense to, such Non-Consenting Lender; provided, however,
that the Commitment of any such Extension Assuming Lender shall
in no event be less than $10,000,000 unless the Commitment of
such Non-Consenting Lender hereunder at such time is less than
$10,000,000, in which case such Extension Assuming Lender shall
assume all of such lesser amount; and provided further that:
(i) the Consenting Lenders and Extension Assuming
Lenders shall collectively have paid to the Non-Consenting
Lenders the aggregate principal amount of, and any interest
accrued and unpaid to the effective date of such assumption
on, the outstanding Advances, if any, of such Non-Consenting
Lenders;
(ii) any accrued and unpaid Facility Fees and
Utilization Fees owing to such Non-Consenting Lenders as of
the effective date of such assumption, and all additional
cost and expense reimbursements and indemnification payments
payable to such Non-Consenting Lenders, and all other
accrued and unpaid amounts owing to such Non-Consenting
Lenders under this Agreement and the Notes, as of the
effective date of such assumption, shall have been paid to
such Non-Consenting Lenders by the Borrowers or such
Consenting Lenders and Extension Assuming Lenders; and
(iii) with respect to any such Extension Assuming
Lender, the applicable processing and recordation fee
required under Section 9.07(a) shall have been paid; and
provided further that such Non-Consenting Lender's rights under
Sections 2.11, 2.14 and 9.04, and its obligations under Section
8.05, shall survive such substitution as to matters occurring
prior to the date of substitution. At least
<PAGE>
23
three Business Days prior to each Extension Date, (A) each such
Extension Assuming Lender, if any, shall have delivered to the Borrowers
and the Administrative Agent an Assumption Agreement, duly executed by
such Extension Assuming Lender, such Non-Consenting Lender, the
Borrowers and the Administrative Agent, (B) each such Consenting
Lender, if any, shall have delivered written confirmation
satisfactory to the Borrowers and the Administrative Agent as to
any increase in the amount of its Commitment resulting from its
assumption of one or more Commitments of the Non-Consenting
Lenders and (C) each Non-Consenting Lender being replaced
pursuant to this Section 2.17(c) shall have delivered to the
Administrative Agent, to be held in escrow on behalf of such Non-
Consenting Lender until the payment in full of all amounts owing
to such Non-Consenting Lender under clauses (i) through (iii) of
this Section 2.17(c), any Note or Notes held by such Non-
Consenting Lender. Upon the payment or prepayment of all amounts
referred to in clauses (i), (ii) and (iii) of this Section
2.17(c), each such Consenting Lender or Extension Assuming
Lender, as of the Extension Date, will be substituted for the
applicable Non-Consenting Lender(s) under this Agreement and
shall be a Lender for all purposes of this Agreement, without any
further acknowledgment by or the consent of any of the other
Lenders, and the obligations of each such Non-Consenting Lender
hereunder shall, by the provisions hereof, be released and
discharged.
(d) If Lenders holding at least a majority in interest
of the aggregate Commitments at such time (after giving effect to
any assumptions pursuant to subsection (c) of this Section 2.17)
consent in writing to a requested extension (whether by execution
and delivery of an Assumption Agreement or otherwise) not later
than one Business Day prior to an Extension Date, the
Administrative Agent shall so notify the Borrowers, and, upon
fulfillment of the applicable conditions set forth in Article III
and subsection (c) above, the Revolver Termination Date then in
effect shall be extended for the 364-day period described in
subsection (a) of this Section 2.17, and all references in this
Agreement and in the Notes to the "Revolver Termination Date"
shall, with respect to each Consenting Lender and each Extension
Assuming Lender for such Extension Date, refer to the Revolver
Termination Date as so extended. Promptly following each
Extension Date, the Administrative Agent shall notify the Lenders
(including, without limitation, each Assuming Lender) of the
extension of the scheduled Revolver Termination Date in effect
immediately prior thereto and shall thereupon record in the
Register the relevant information with respect to each such
Consenting Lender and each such Extension Assuming Lender.
SECTION 2.18. Use of Proceeds. The proceeds of the
Advances shall be available (and each Borrower agrees that it
shall use such proceeds) solely for general corporate purposes of
the Company and its Subsidiaries, including commercial paper
backstop.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement
shall become effective on and as of the first date (the
"Effective Date") on which the following conditions precedent
have been satisfied:
(a) There shall have occurred no Material Adverse
Change since December 31, 1998.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Company or any of its
Subsidiaries pending or threatened before any court,
governmental agency or arbitrator that (i) could be
reasonably likely to have a Material Adverse Effect or (ii)
purports to affect the legality, validity or enforceability
of this Agreement or any Note or the consummation of the
transactions contemplated hereby.
(c) Nothing shall have come to the attention of the
Lenders during the course of their due diligence
investigation to lead them to believe that the Information
Memorandum was or has become misleading, incorrect or
incomplete in any material respect; without limiting the
generality of the foregoing, the Lenders shall have been
given such access to the management, records, books of
account, contracts and properties of the Company and its
Subsidiaries as they shall have reasonably requested.
<PAGE>
24
(d) All governmental and third party consents and
approvals necessary in connection with the transactions
contemplated hereby shall have been obtained (without the
imposition of any conditions that are not acceptable to the
Lenders) and shall remain in effect, and no law or
regulation shall be applicable in the reasonable judgment of
the Lenders that restrains, prevents or imposes materially
adverse conditions upon the transactions contemplated
hereby.
(e) The Company shall have notified each Lender and
the Administrative Agent in writing as to the proposed
Effective Date.
(f) The Company shall have paid all accrued fees and
expenses of the Administrative Agent and the Lenders in
connection with this Agreement and the transactions
contemplated hereby (including the accrued fees and expenses
of counsel to the Administrative Agent).
(g) On the Effective Date, the following statements
shall be true and the Administrative Agent shall have
received for the account of each Lender a certificate signed
by a duly authorized officer of the Company, dated the
Effective Date, stating that:
(i) The representations and warranties
contained in Section 4.01 are correct on and as of the
Effective Date, and
(ii) No event has occurred and is continuing
that constitutes a Default.
(h) The Administrative Agent shall have received on or
before the Effective Date the following, each dated such
day, in form and substance satisfactory to the
Administrative Agent and (except for the Notes) in
sufficient copies for each Lender:
(i) The Notes payable to the order of the
Lenders, respectively.
(ii) Certified copies of the resolutions of
the Board of Directors of each Borrower authorizing
this Agreement and the Notes to be executed by it, and
of all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect
to this Agreement and the Notes.
(iii) A certificate of the Secretary or
an Assistant Secretary of each Borrower certifying the
names and true signatures of the officers of such
Borrower authorized to sign this Agreement and the
Notes and the other documents to be delivered
hereunder.
(iv) A favorable opinion of Don A. Jensen,
Vice President and Secretary of each of the Borrowers,
counsel for the Borrowers, substantially in the form of
Exhibit D hereto and as to such other matters as any
Lender through the Administrative Agent may reasonably
request.
(v) A favorable opinion of Shearman &
Sterling, counsel for the Administrative Agent, in form
and substance satisfactory to the Administrative Agent.
(i) The Borrowers shall have terminated the
commitments, and paid in full all Debt, interest, fees and
other amounts outstanding, under the $3,000,000,000 364-Day
Credit Agreement dated as of August 7, 1998 among the
Company and Sprint Capital, as borrowers, the lenders
parties thereto, Citibank N.A., as administrative agent,
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.
SECTION 3.02. Conditions Precedent to Each Revolving
Credit Borrowing, Increase Date and Extension Date. The
obligation of each Lender to make a Revolving Credit Advance on
the occasion of each Revolving Credit Borrowing, each Commitment
Increase and each extension of Commitments pursuant to Section
2.17 shall be subject to the conditions precedent that the
Effective Date shall have occurred and on the date of such
Revolving Credit Borrowing, the applicable Increase Date and the
applicable Extension Date (a) the following
<PAGE>
25
statements shall be true (and each of the giving of the applicable
Notice of Revolving Credit Borrowing, request for Commitment Increase,
request for Commitment extension and the acceptance by the
applicable Borrower of the proceeds of such Revolving Credit
Borrowing shall constitute a representation and warranty by such
Borrower that on the date of such Borrowing, such Increase Date
and such Extension Date such statements are true):
(i) the representations and warranties contained in
Section 4.01 (except the representations set forth in the
last sentence of subsection (e) thereof and in subsection
(f) thereof (other than clause (ii) thereof)) are correct in
all material respects on and as of the date of such
Revolving Credit Borrowing, before and after giving effect
to such Revolving Credit Borrowing and to the application of
the proceeds therefrom, such Commitment Increase or
Commitment extension as though made on and as of such date,
and
(ii) no event has occurred and is continuing, or would
result from such Revolving Credit Borrowing or from the
application of the proceeds therefrom, that constitutes a
Default;
and (b) the Administrative Agent shall have received such other
approvals, opinions or documents as any Lender through the
Administrative Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each Competitive
Bid Borrowing. The obligation of each Lender that is to make a
Competitive Bid Advance on the occasion of a Competitive Bid
Borrowing to make such Competitive Bid Advance as part of such
Competitive Bid Borrowing is subject to the conditions precedent
that (a) the Administrative Agent shall have received the written
notice of the acceptance of offers made by Lenders for
Competitive Bid Advances with respect thereto in accordance with
Section 2.03(a)(iii)(y) and (b) on the date of such Competitive
Bid Borrowing the following statements shall be true (and each of
the giving of the applicable Notice of Competitive Bid Borrowing
and the acceptance by the applicable Borrower of the proceeds of
such Competitive Bid Borrowing shall constitute a representation
and warranty by such Borrower that on the date of such
Competitive Bid Borrowing such statements are true):
(i) the representations and warranties contained in
Section 4.01 (except the representations set forth in the
last sentence of subsection (e) thereof and in subsection
(f) thereof (other than clause (ii) thereof)) are correct in
all material respects on and as of the date of such
Competitive Bid Borrowing, before and after giving effect to
such Competitive Bid Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date,
and
(ii) no event has occurred and is continuing, or would
result from such Competitive Bid Borrowing or from the
application of the proceeds therefrom, that constitutes a
Default.
SECTION 3.04. Determinations Under Section 3.01. For
purposes of determining compliance with the conditions specified
in Section 3.01, each Lender shall be deemed to have consented
to, approved or accepted or to be satisfied with each document or
other matter required thereunder to be consented to or approved
by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions
contemplated by this Agreement shall have received notice from
such Lender prior to the date that the Borrowers, by notice to
the Lenders, designate as the proposed Effective Date, specifying
its objection thereto. The Administrative Agent shall promptly
notify the Lenders of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrowers. Each Borrower represents and warrants as follows:
(a) The Company is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Kansas. Sprint Capital is a corporation duly
organized, validly existing and in good standing under the
laws of the State of Delaware.
<PAGE>
26
(b) The execution, delivery and performance by each
Borrower of this Agreement and the Notes to be executed by
it, and the consummation of the transactions contemplated
hereby, are within such Borrower's corporate powers, have
been duly authorized by all necessary corporate action, and
do not contravene (i) such Borrower's charter or bylaws or
(ii) any law or any contractual restriction binding on or
affecting such Borrower.
(c) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority
or regulatory body or any other third party is required for
the due execution, delivery and performance by such Borrower
of this Agreement or the Notes to be executed by it.
(d) This Agreement has been duly executed and
delivered by each Borrower. This Agreement is the legal,
valid and binding obligation of each Borrower enforceable
against such Borrower in accordance with its terms. Each of
the Notes to be executed by a Borrower when delivered
hereunder will have been duly executed and delivered by such
Borrower and will be the legal, valid and binding obligation
of such Borrower, enforceable against such Borrower in
accordance with its terms.
(e) The Consolidated balance sheet of the Company and
its Subsidiaries as at December 31, 1998, and the related
Consolidated statements of income and cash flows of the
Company and its Subsidiaries for the fiscal year then ended,
accompanied by an opinion of Ernst & Young LLP, independent
public accountants, and the Consolidated balance sheet of
the Company and its Subsidiaries as at March 31, 1999, and
the related Consolidated statements of income and cash flows
of the Company and its Subsidiaries for the three months
then ended, duly certified by the chief financial officer,
chief accounting officer or treasurer of the Company, copies
of which have been furnished to each Lender, fairly present,
subject, in the case of said balance sheet as at March 31,
1999, and said statements of income and cash flows for the
three months then ended, to year-end audit adjustments, the
Consolidated financial condition of the Company and its
Subsidiaries as at such dates and the Consolidated results
of the operations of the Company and its Subsidiaries for
the periods ended on such dates, all in accordance with
generally accepted accounting principles consistently
applied. Since December 31, 1998, there has been no
Material Adverse Change.
(f) There is no pending or threatened action, suit,
investigation, litigation or proceeding, including, without
limitation, any Environmental Action, affecting the Company
or any of its Subsidiaries before any court, governmental
agency or arbitrator that (i) could be reasonably likely to
have a Material Adverse Effect or (ii) purports to affect
the legality, validity or enforceability of this Agreement
or any Note or the consummation of the transactions
contemplated hereby.
(g) No Borrower is engaged in the business of
extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U issued by
the Board of Governors of the Federal Reserve System), and
no proceeds of any Advance will be used to purchase or carry
any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock.
(h) The Company and each of its Subsidiaries owns, or
is licensed to use, all trademarks, tradenames, copyrights,
technology, know-how and processes necessary for the conduct
of its business as currently conducted except for those the
failure to own or license which could not reasonably be
expected to have a Material Adverse Effect (the
"Intellectual Property"). No claim has been asserted and is
pending by any Person challenging or questioning the use of
any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does
such Borrower know of any valid basis for any such claim,
except, in either case, for such claims that in the
aggregate could not reasonably be expected to have a
Material Adverse Effect. The use of such Intellectual
Property by the Company and its Subsidiaries does not
infringe on the rights of any Person, except for such claims
and infringements that, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
(i) No Borrower is an "investment company", or a
company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
No Borrower is subject to regulation under any Federal or
State statute or regulation which limits its ability to
incur Debt.
<PAGE>
27
(j) The Company owns all of the shares of the issued
and outstanding capital stock of Sprint Capital.
(k) The Company has (i) initiated a review and
assessment of all areas within its and each of its
Subsidiaries' business and operations that could be
adversely affected by the risk that computer applications
used by the Company or any of its Subsidiaries may be unable
to recognize and perform properly date sensitive functions
involving certain dates prior to and any date after December
31, 1999 (the "Year 2000 Problem"), (ii) developed a plan
and timetable for addressing the Year 2000 Problem on a
timely basis and (iii) to date, implemented that plan in
accordance with such timetable. Based on the foregoing, the
Company believes that all computer applications that are
material to its or any of its Subsidiaries' business and
operations are reasonably expected on a timely basis to be
able to perform properly date-sensitive functions for all
dates before, on and after January 1, 2000, except to the
extent that a failure to do so could not reasonably be
expected to have a Material Adverse Effect and except to the
extent the failure of computer applications to perform is
due to circumstances beyond the Company's control.
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants. So long as any
Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, each Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each
of its Subsidiaries to comply, in all material respects,
with all applicable laws, rules, regulations and orders
(including, without limitation, compliance with ERISA and
Environmental Laws).
(b) Payment of Taxes, Etc. Pay and discharge, and
cause each of its Subsidiaries to pay and discharge, before
the same shall become delinquent, (i) all taxes, assessments
and governmental charges or levies imposed upon it or upon
its property and (ii) all lawful claims that, if unpaid,
might by law become a Lien upon its property; provided,
however, that neither the Company nor any of its
Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge or claim that is being contested in
good faith and by proper proceedings and as to which
appropriate reserves are being maintained.
(c) Maintenance of Insurance. Maintain, and cause
each of its Subsidiaries to maintain, insurance with
responsible and reputable insurance companies or
associations in such amounts and covering such risks as is
usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in
which such Borrower or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc.
Continue to engage in business of the same general type as
now conducted by it and preserve and maintain, and cause
each of its Subsidiaries (other than Insignificant
Subsidiaries) to preserve and maintain, its existence,
rights (charter and statutory) and franchises; provided,
however, that the Company and its Subsidiaries may
consummate any merger or consolidation permitted under
Section 5.02(b) and provided further that neither the
Company nor any of its Subsidiaries shall be required to
preserve any right or franchise if the Company or such
Subsidiary shall determine that the preservation thereof is
no longer desirable in the conduct of the business of the
Company or such Subsidiary, as the case may be, and that the
loss thereof is not disadvantageous in any material respect
to the Company, such Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time and
from time to time upon notice, permit the Administrative
Agent or any of the Lenders or any agents or representatives
thereof to examine and make copies of and abstracts from the
records and books of account of, and visit the properties
of, such Borrower and any of its Subsidiaries, and to
discuss the affairs, finances and accounts of such Borrower
and any of
<PAGE>
28
its Subsidiaries with any of their officers or directors
and with their independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account in
which full and correct entries shall be made of all
financial transactions and the assets and business of such
Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time
to time.
(g) Maintenance of Properties, Etc. Maintain and
preserve, and cause each of its Subsidiaries to maintain and
preserve, all of its properties that are used or useful in
the conduct of its business in good working order and
condition, ordinary wear and tear excepted.
(h) Transactions with Affiliates. Conduct, and cause
each of its Subsidiaries to conduct, all transactions
otherwise permitted under this Agreement with any of their
Affiliates (other than the Company and its Subsidiaries) on
terms that are fair and reasonable and no less favorable to
such Borrower or such Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an
Affiliate.
(i) Reporting Requirements. Furnish to the
Administrative Agent for the account of each of the Lenders:
(i) as soon as available and in any event
within 45 days electronically and within 60 days in
paper format after the end of each of the first three
quarters of each fiscal year of the Company,
Consolidated balance sheets of (A) the Company and its
Subsidiaries, (B) the PCS Group and (C) the FON Group
as of the end of such quarter and Consolidated
statements of income and cash flows of (A) the Company
and its Subsidiaries, (B) the PCS Group and (C) the FON
Group for the period commencing at the end of the
previous fiscal year and ending with the end of such
quarter, duly certified (subject to year-end audit
adjustments) by the chief financial officer, the chief
accounting officer or the treasurer of the Company as
having been prepared in accordance with generally
accepted accounting principles and a certificate of the
chief financial officer, the chief accounting officer
or the treasurer of the Company as to compliance with
the terms of this Agreement and setting forth in
reasonable detail the calculations necessary to
demonstrate compliance with Section 5.03, provided that
in the event of any change in GAAP used in the
preparation of such financial statements, the Company
shall also provide, if necessary for the determination
of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to
GAAP; provided further, that financial statements for
the PCS Group and the FON Group shall be required only
for periods during which the Company has PCS tracking
stock outstanding;
(ii) as soon as available and in any event
within 90 days electronically and within 120 days in
paper format after the end of each fiscal year of the
Company, a copy of the annual audit report for such
year for the Company and its Subsidiaries, containing
Consolidated balance sheets of (A) the Company and its
Subsidiaries, (B) the PCS Group and (C) the FON Group
as of the end of such fiscal year and Consolidated
statements of income and cash flows of (A) the Company
and its Subsidiaries, (B) the PCS Group and (C) the FON
Group for such fiscal year, in each case accompanied by
an opinion acceptable to the Required Lenders by Ernst
& Young LLP or other independent public accountants
acceptable to the Required Lenders, provided that in
the event of any change in GAAP used in the preparation
of such financial statements, the Company shall also
provide, if necessary for the determination of
compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to
GAAP; provided further, that financial statements for
the PCS Group and the FON Group shall be required only
for periods during which the Company has PCS tracking
stock outstanding;
(iii) as soon as possible and in any
event within five days after the occurrence of each
Default continuing on the date of such statement, a
statement of the chief financial officer, the chief
accounting officer or the treasurer of the Company
setting forth details of such Default and the action
that the Company has taken and proposes to take with
respect thereto;
<PAGE>
29
(iv) promptly after the sending or filing
thereof, copies of all reports that the Company sends
to any of its securityholders, and copies of all
reports and proxy solicitations that the Company files
with the Securities and Exchange Commission;
(v) promptly after the commencement thereof,
notice of all actions and proceedings before any court,
governmental agency or arbitrator affecting the Company
or any of its Subsidiaries of the type described in
Section 4.01(f); and
(vi) such other information respecting the
Company or any of its Subsidiaries as any Lender
through the Administrative Agent may from time to time
reasonably request.
SECTION 5.02. Negative Covenants. So long as any
Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, the Company will not:
(a) Liens, Etc. Create or suffer to exist, or permit
any of its Subsidiaries to create or suffer to exist, any
Lien on or with respect to any of its properties, whether
now owned or hereafter acquired, or assign for security
purposes, or permit any of its Subsidiaries to assign for
security purposes, any right to receive income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real
property or equipment acquired or held by the Company
or any Subsidiary in the ordinary course of business to
secure the purchase price of such property or equipment
or to secure Debt incurred solely for the purpose of
financing the acquisition of such property or
equipment, or Liens existing on such property or
equipment at the time of its acquisition (other than
any such Liens created in contemplation of such
acquisition that were not incurred to finance the
acquisition of such property) or extensions, renewals
or replacements of any of the foregoing for the same or
a lesser amount, provided, however, that no such Lien
shall extend to or cover any properties of any
character other than the real property or equipment
being acquired, and no such extension, renewal or
replacement shall extend to or cover any properties not
theretofore subject to the Lien being extended, renewed
or replaced,
(iii) the Liens existing on the Effective
Date and described on Schedule 5.02(a) hereto,
(iv) Liens on property of a Person existing
at the time such Person is merged into or consolidated
with the Company or any Subsidiary of the Company or
becomes a Subsidiary of the Company; provided that such
Liens were not created in contemplation of such merger,
consolidation or acquisition and do not extend to any
assets other than those of the Person so merged into or
consolidated with the Company or such Subsidiary or
acquired by the Company or such Subsidiary,
(v) Liens on the property or assets of a
Subsidiary of the Company that is a member of the FON
Group which secure obligations and liabilities of such
Subsidiary,
(vi) other Liens securing Debt in an
aggregate principal amount not to exceed at any time
outstanding 2% of the sum of Consolidated Debt and
Consolidated Net Worth of the Company and its
Subsidiaries, and
(vii) the replacement, extension or
renewal of any Lien described on Schedule 5.02(a) upon
or in the same property theretofore subject thereto or
the replacement, extension or renewal (without increase
in the amount or change in any direct or contingent
obligor) of the Debt secured thereby.
<PAGE>
30
(b) Mergers, Etc. Merge or consolidate with or into,
or convey, transfer, lease or otherwise dispose of (whether
in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or
hereafter acquired) to, any Person, or permit any of its
Subsidiaries to do so, except that (i) any Subsidiary of the
Company may merge or consolidate with or into, or dispose of
assets to, any other Subsidiary of the Company, (ii) any
Subsidiary of the Company may merge into or dispose of
assets to the Company and the Company or any of its
Subsidiaries may merge with any other Person so long as the
Company or any of its Subsidiaries is the surviving
corporation; (iii) the Company or any of its Subsidiaries
may exchange Telephone Assets for Telephone Assets of any
other Person, for the purpose of consolidating the Telephone
Assets of the Company or such Subsidiary, to the extent of
the greater of the book value and the fair market value (as
determined in good faith by the Board of Directors of the
Company or such Subsidiary) of the Telephone Assets obtained
by the Company or such Subsidiary as a result of such
exchange; (iv) the Company or any of its Subsidiaries may
sell any and all investments owned by it that constitute
minority interests in other Persons, provided that the
aggregate book value of all such investments so sold by the
Company and its Subsidiaries does not exceed $1,000,000,000;
(v) the Company or any of its Subsidiaries may sell accounts
receivable with or without recourse; and (vi) the Company
and any of its Subsidiaries may sell, lease, transfer or
otherwise dispose of its non-current assets (in addition to
sales, transfers or other dispositions permitted by clauses
(iii), (iv) and (v) above), provided that the excess of (A)
the aggregate book value of all such assets so sold, leased,
transferred or otherwise disposed of over (B) liabilities
associated with such assets for which neither the Company
nor any of its Subsidiaries are liable immediately after
any such sale, transfer, or other disposition does not
exceed $1,700,000,000 for the period from December 31, 1997
through the Revolver Termination Date provided further, in
each case, that no Default shall have occurred and be
continuing at the time of such proposed transaction or would
result therefrom.
(c) Accounting Changes. Make or permit, or permit any
of its Subsidiaries to make or permit, any change in
accounting policies or reporting practices, except as
required or permitted by generally accepted accounting
principles.
SECTION 5.03. Financial Covenants. So long as any
Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, the Company will:
(a) Leverage Ratio. Maintain a ratio of Consolidated
Debt to the sum of Consolidated Debt and Consolidated Net
Worth of not greater than 0.65:1.00.
(b) Interest Coverage Ratio. Maintain, as of the end
of any fiscal quarter ending on or prior to June 30, 2000,
for any period of four fiscal quarters (which need not be
consecutive) out of any of the five consecutive fiscal
quarters ending at the end of such fiscal quarter a ratio of
Consolidated EBITDA of the Company and its Subsidiaries for
such four fiscal quarter period to interest expense on,
including amortization of debt discount in respect of,
Consolidated Debt of the Company and its Subsidiaries during
such four fiscal quarter period of not less than 2.50:1;
provided that if the Revolver Termination Date is extended
one or more times pursuant to the provisions of Section
2.17, (x) such ratio shall not be less than 3.00:1 for any
fiscal quarter ending after June 30, 2000 and on or before
June 30, 2001, (y) such ratio shall not be less than 3.50:1
for any fiscal quarter ending after June 30, 2001 and on or
before June 30, 2002, and (z) such ratio shall not be less
than 4.00:1 for any fiscal quarter ending after June 30,
2002 and on or before June 30, 2003.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the
following events ("Events of Default") shall occur and be
continuing:
(a) Any Borrower shall fail to pay any principal of
any Advance when the same becomes due and payable; or any
Borrower shall fail to pay any interest on any Advance or
make any other payment
<PAGE>
31
of fees or other amounts payable under this Agreement or any
Note within three Business Days after the same becomes due
and payable; or
(b) Any representation or warranty made by any
Borrower herein or by such Borrower in connection with this
Agreement shall prove to have been incorrect in any material
respect when made; or
(c) (i) Any Borrower shall fail to perform or observe
any term, covenant or agreement contained in Section
5.01(d), (e) or (i), 5.02 or 5.03, or (ii) any Borrower
shall fail to perform or observe any other term, covenant or
agreement contained in this Agreement on its part to be
performed or observed if such failure shall remain
unremedied for 30 days after written notice thereof shall
have been given to the Borrowers by the Administrative Agent
or any Lender; or
(d) The Company or any of its Subsidiaries shall fail
to pay any principal of or premium or interest on any Debt
that is outstanding in a principal amount of at least
$75,000,000 in the aggregate (but excluding Debt outstanding
hereunder) of the Company or such Subsidiary (as the case
may be), when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after
the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or any other
event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall
continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of
such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Debt; or any such Debt
shall be declared to be due and payable, or required to be
prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased,
or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the
stated maturity thereof; or
(e) The Company or any of its Subsidiaries (other than
any Insignificant Subsidiary) shall generally not pay its
debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the Company or
any of its Subsidiaries (other than any Insignificant
Subsidiary) seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief,
or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted
against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period
of 60 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for
relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the
Company or any of its Subsidiaries (other than any
Insignificant Subsidiary) shall take any corporate action to
authorize any of the actions set forth above in this
subsection (e); or
(f) Any judgment or order for the payment of money in
excess of $10,000,000 shall be rendered against the Company
or any of its Subsidiaries and either (i) enforcement
proceedings shall have been commenced by any creditor or
upon such judgment or order or (ii) there shall be any
period of 60 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(g) (i) Any Person or two or more Persons (other than
France Telecom S.A., a societe anonyme formed under the laws
of France ("FT"), or Deutsche Telekom AG, an
Aktiengesellschaft formed under the laws of Germany ("DT"))
acting in concert shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of
1934), directly or indirectly, of Voting Stock of the
Company (or other securities convertible into such Voting
Stock) representing 33 1/3% or more of the combined voting
power of all Voting Stock of the Company, or shall obtain
the power (whether or not exercised) to elect a majority of
the Company's directors; or (ii) any Person or two or more
Persons (other than FT or DT) acting in concert shall
succeed in having sufficient of its nominees elected to the
Board of Directors of the Company such that such nominees,
when added to any existing director remaining on the Board
of Directors of the Company after
<PAGE>
32
such election who is a related person of such Person, shall
constitute a majority of the Board of Directors of the Company;
(iii) any Person or two or more Persons (other than FT or DT)
acting in concert shall have acquired by contract or otherwise, or
shall have entered into a contract or arrangement (and five
Business Days shall have elapsed since the date of entering
into such contract or arrangement) that, upon consummation,
will result in its or their acquisition of the power to
exercise, directly or indirectly, a controlling influence
over the management or policies of the Company; or (iv) the
Company shall cease to maintain beneficial ownership of 100%
of the Voting Stock of Sprint Capital; or
(h) The Company or any of its ERISA Affiliates shall
incur, or shall be reasonably likely to incur, liability in
excess of $75,000,000 in the aggregate as a result of one or
more of the following: (i) the occurrence of any ERISA
Event; (ii) the partial or complete withdrawal of the
Company or any of its ERISA Affiliates from a Multiemployer
Plan; or (iii) the reorganization or termination of a
Multiemployer Plan; or
(i) The Company Guaranty contained in Article VII of
this Agreement shall cease for any reason to be valid and
binding on or enforceable against the Company or the Company
shall so state in writing;
then, and in any such event, the Administrative Agent (i) shall
at the request, or may with the consent, of the Required Lenders,
by notice to the Borrowers, declare the obligation of each Lender
to make Advances to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with
the consent, of the Required Lenders, by notice to the Borrowers,
declare the Notes, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable,
whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrowers; provided, however, that
in the event of an actual or deemed entry of an order for relief
with respect to any Borrower under the Federal Bankruptcy Code,
(A) the obligation of each Lender to make Advances shall
automatically be terminated and (B) the Notes, all such interest
and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by each
Borrower.
ARTICLE VII
COMPANY GUARANTY
SECTION 7.01. Guaranty. The Company hereby
unconditionally and irrevocably guarantees the punctual payment
when due, whether at stated maturity, by acceleration or
otherwise, of all obligations of Sprint Capital now or hereafter
existing under this Agreement or any Note, whether for principal,
interest, fees, expenses or otherwise (such obligations, to the
extent not paid by Sprint Capital or specifically waived in
accordance with Section 9.01, being the "Guaranteed
Obligations"), and agrees to pay any and all expenses (including
reasonable counsel fees and expenses) incurred by the
Administrative Agent or the Lenders in enforcing any rights under
this Article VII ("this Guaranty"). Without limiting the
generality of the foregoing, the Company's liability shall extend
to all amounts that constitute part of the Guaranteed Obligations
and would be owed by Sprint Capital to the Administrative Agent
or any Lender under this Agreement or any Note but for the fact
that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving
Sprint Capital.
SECTION 7.02. Guaranty Absolute. The Company
guarantees that the Guaranteed Obligations will be paid strictly
in accordance with the terms of this Agreement and the Notes,
regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the
rights of the Administrative Agent or the Lenders with respect
thereto. The obligations of the Company under this Guaranty are
independent of the Guaranteed Obligations, and a separate action
or actions may be brought and prosecuted against the Company to
enforce this Guaranty, irrespective of whether any action is
brought against Sprint Capital or whether Sprint Capital is
joined in any such action or actions. The liability of the
Company under this Guaranty shall be irrevocable, absolute and
unconditional irrespective of, and, to the maximum extent
permitted by law, the Company hereby irrevocably waives any
defenses it may now or hereafter have in any way relating to, any
or all of the following:
<PAGE>
33
(a) any lack of validity or enforceability of this
Agreement or any agreement or instrument relating hereto;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Guaranteed
Obligations, or any other amendment or waiver of or any
consent to departure from this Agreement or any Note,
including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of
additional credit to Sprint Capital or otherwise;
(c) any taking, exchange, release or non-perfection of
any collateral, or any taking, release or amendment or
waiver of or consent to departure from any other guaranty,
for all or any of the Guaranteed Obligations;
(d) any change, restructuring or termination of the
corporate structure or existence of Sprint Capital; or
(e) any other circumstance (including, without
limitation, any statute of limitations) or any existence of
or reliance on any representation by the Administrative
Agent or any Lender that might otherwise constitute a
defense available to, or a discharge of, the Company, Sprint
Capital or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of any of the
Guaranteed Obligations is rescinded or must otherwise be returned
by the Administrative Agent or any Lender upon the insolvency,
bankruptcy or reorganization of Sprint Capital or otherwise, all
as though such payment had not been made.
SECTION 7.03. Waiver. The Company hereby waives
promptness, diligence, notice of acceptance and any other notice
with respect to any of the Guaranteed Obligations and this
Guaranty and any requirement that the Administrative Agent or any
Lender exhaust any right or take any action against Sprint
Capital or any other Person or any collateral. The Company
acknowledges that it will receive direct and indirect benefits
from the financing arrangements contemplated herein and that the
waiver set forth in this Section 7.03 is knowingly made in
contemplation of such benefits. The Company hereby waives any
right to revoke this Guaranty, and acknowledges that this
Guaranty is continuing in nature and applies to all Guaranteed
Obligations, whether existing now or in the future.
SECTION 7.04. Continuing Guaranty; Assignments. This
Guaranty is a continuing guaranty and shall (a) remain in full
force and effect until the later of the cash payment in full of
the Guaranteed Obligations and all other amounts payable under
this Guaranty and the Revolver Termination Date, (b) be binding
upon the Company, its successors and assigns and (c) inure to the
benefit of and be enforceable by the Lenders, the Administrative
Agent and their successors, transferees and assigns. Without
limiting the generality of the foregoing clause (c), any Lender
may assign or otherwise transfer all or any portion of its rights
and obligations hereunder (including, without limitation, all or
any portion of its Commitment, the Advances owing to it and the
Note or Notes held by it) to any other Person, and such other
Person shall thereupon become vested with all the benefits in
respect thereof granted to such Lender herein or otherwise, in
each case as provided in Section 9.07.
SECTION 7.05. Subrogation. The Company will not
exercise any rights that it may now or hereafter acquire against
Sprint Capital or any other insider guarantor that arise from the
existence, payment, performance or enforcement of the Company's
obligations under this Guaranty, including, without limitation,
any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in
any claim or remedy of the Administrative Agent or any Lender
against Sprint Capital or any other insider guarantor or any
collateral, whether or not such claim, remedy or right arises in
equity or under contract, statute or common law, including,
without limitation, the right to take or receive from Sprint
Capital or any other insider guarantor, directly or indirectly,
in cash or other property or by set-off or in any other manner,
payment or security solely on account of such claim, remedy or
right, unless and until all of the Guaranteed Obligations and all
other amounts payable under this Guaranty shall have been paid in
full in cash and the Revolver Termination Date shall have
occurred. If any amount shall be paid to the Company in
violation of the preceding sentence at any time prior to the
later of the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty and the
<PAGE>
34
Revolver Termination Date, such amount shall be held in trust
for the benefit of the Administrative Agent and the Lenders and
shall forthwith be paid to the Administrative Agent to be
credited and applied to the Guaranteed Obligations and all other
amounts payable under this Guaranty, whether matured or
unmatured, in accordance with the terms of this Guaranty, or to
be held as collateral for any Guaranteed Obligations or other
amounts payable under this Guaranty thereafter arising. If (i)
the Company shall make payment to the Administrative Agent or any
Lender of all or any part of the Guaranteed Obligations, (ii) all
of the Guaranteed Obligations and all other amounts payable under
this Guaranty shall be paid in full in cash and (iii) the
Revolver Termination Date shall have occurred, the Administrative
Agent and the Lenders will, at the Company's request and expense,
execute and deliver to the Company appropriate documents, without
recourse and without representation or warranty, necessary to
evidence the transfer by subrogation to the Company of an
interest in the Guaranteed Obligations resulting from such
payment by the Company.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01. Authorization and Action. Each Lender
hereby appoints and authorizes the Administrative Agent to take
such action as Administrative Agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated
to the Administrative Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto.
As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the
Notes), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in
so acting or refraining from acting) upon the instructions of the
Required Lenders, and such instructions shall be binding upon all
Lenders and all holders of Notes; provided, however, that the
Administrative Agent shall not be required to take any action
that exposes the Administrative Agent to personal liability or
that is contrary to this Agreement or applicable law. The
Administrative Agent agrees to give to each Lender prompt notice
of each notice given to it by any Borrower pursuant to the terms
of this Agreement.
SECTION 8.02. Administrative Agent's Reliance, Etc.
Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection
with this Agreement, except for its or their own gross negligence
or willful misconduct. Without limitation of the generality of
the foregoing, the Administrative Agent: (i) may treat the payee
of any Note as the holder thereof until the Administrative Agent
receives and accepts an Assignment and Acceptance entered into by
the Lender that is the payee of such Note, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 9.07; (ii)
may consult with legal counsel (including counsel for the
Borrowers), independent public accountants and other experts
selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no
warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in
connection with this Agreement; (iv) shall not have any duty to
ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of this Agreement on
the part of the Borrowers or to inspect the property (including
the books and records) of the Borrowers; (v) shall not be
responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other instrument or document furnished
pursuant hereto; and (vi) shall incur no liability under or in
respect of this Agreement by acting upon any notice, consent,
certificate or other instrument or writing (which may be by
telecopier, telegram or telex) reasonably believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 8.03. Citibank and Affiliates. With respect
to its Commitment, the Advances made by it and the Note issued to
it, Citibank shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though
it were not the Administrative Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include
Citibank in its individual capacity. Citibank and its Affiliates
may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and
generally engage in any kind of business with, the Company, any
of its Subsidiaries and any Person who may do business with or
own securities of the Company or any such Subsidiary, all as if
Citibank were not the Administrative Agent and without any duty
to account therefor to the Lenders.
<PAGE>
35
SECTION 8.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon
the Administrative Agent or any other Lender and based on the
financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.
Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement.
SECTION 8.05. Indemnification. The Lenders agree to
indemnify the Administrative Agent (to the extent not reimbursed
by the Borrowers), ratably according to the respective principal
amounts of the Revolving Credit Advances then owed to each of
them (or if no such Advances are outstanding at the time, ratably
according to the respective amounts of their Commitments), from
and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, reasonable costs,
expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against the
Administrative Agent in any way relating to or arising out of
this Agreement or any action taken or omitted by the
Administrative Agent under this Agreement (collectively, the
"Indemnified Costs"), provided that no Lender shall be liable for
any portion of the Indemnified Costs resulting from the
Administrative Agent's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender agrees to
reimburse the Administrative Agent promptly upon demand for its
ratable share of any reasonable out-of-pocket expenses (including
reasonable counsel fees) incurred by the Administrative Agent in
connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or
legal advice in respect of rights or responsibilities under, this
Agreement, to the extent that the Administrative Agent is not
reimbursed for such expenses by the Borrowers. In the case of
any investigation, litigation or proceeding giving rise to any
Indemnified Costs, this Section 8.05 applies whether any such
investigation, litigation or proceeding is brought by the
Administrative Agent, any Lender or a third party.
SECTION 8.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrowers. Upon any such
resignation, the Required Lenders shall have the right to appoint
a successor Administrative Agent. If no successor Administrative
Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation,
then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be
a commercial bank organized under the laws of the United States
of America or of any State thereof and having a combined capital
and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights,
powers, discretion, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under this
Agreement. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article
VIII shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under
this Agreement.
SECTION 8.07. Other Agents. Each Lender hereby
acknowledges that none of the arranger, syndication agent, the
documentation agents or any other Lender designated as any
"Agent" (other than the Administrative Agent) on the signature
pages hereof has any liability hereunder other than in its
capacity as a Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver
of any provision of this Agreement or the Notes, nor consent to
any departure by any Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the
Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment,
waiver or consent shall, unless in writing and signed by all the
Lenders, do any of the following: (a) waive any of
<PAGE>
36
the conditions specified in Section 3.01, (b) increase the
Commitments of the Lenders or subject the Lenders to any
additional obligations (except as contemplated by Section 2.16),
(c) reduce the principal of, or interest on, the Notes or any
fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Notes
or any fees or other amounts payable hereunder, (e) change the
percentage of the Commitments or of the aggregate unpaid
principal amount of the Advances, or the number of Lenders, that
shall be required for the Lenders or any of them to take any
action hereunder, (f) reduce or limit the obligations of the
Company under Section 7.01 or release or otherwise limit
liability of the Company with respect to the Guaranteed
Obligations or (g) amend this Section 9.01; and provided further
that no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Lenders
required above to take such action, affect the rights or duties
of the Administrative Agent under this Agreement or any Note.
SECTION 9.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing
(including telecopier, telegraphic or telex communication) and
mailed, telecopied, telegraphed, telexed or delivered, if to the
Company, at its address at 2330 Shawnee Mission Parkway,
Westwood, Kansas 66205, Attention: Treasurer (Telecopier No.:
(913) 624-3670); if to Sprint Capital, at its address at 2330
Shawnee Mission Parkway, Westwood, Kansas 66205, Attention:
Treasurer (Telecopier No.: (913) 624-3670); if to any Initial
Lender, at its Domestic Lending Office specified opposite its
name on Schedule I hereto; if to any other Lender, at its
Domestic Lending Office specified in the Assignment and
Acceptance or the Assumption Agreement pursuant to which it
became a Lender; and if to the Administrative Agent, at its
address at 399 Park Avenue, New York, New York 10043, Attention:
Robert Parr (Telecopier No.: (212) 793-6873); or, as to any
Borrower or the Administrative Agent, at such other address as
shall be designated by such party in a written notice to the
other parties and, as to each other party, at such other address
as shall be designated by such party in a written notice to the
Borrowers and the Administrative Agent. All such notices and
communications shall, when mailed, telecopied, telegraphed or
telexed, be effective when deposited in the mails, telecopied,
delivered to the telegraph company or confirmed by telex
answerback, respectively, except that notices and communications
to the Administrative Agent pursuant to Article II, III or VII
shall not be effective until received by the Administrative
Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or the
Notes or of any Exhibit (other than the Notes) hereto to be
executed and delivered hereunder shall be effective as delivery
of a manually executed counterpart thereof.
SECTION 9.03. No Waiver; Remedies. No failure on the
part of any Lender or the Administrative Agent to exercise, and
no delay in exercising, any right hereunder or under any Note
shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Borrowers
agree to pay on demand all reasonable costs and expenses of the
Administrative Agent in connection with the preparation,
execution, delivery, administration, modification and amendment
of this Agreement, the Notes and the other documents to be
delivered hereunder, including, without limitation, (A) all due
diligence, syndication (including printing, distribution and bank
meetings), transportation, computer, duplication, appraisal,
consultant, and audit expenses and (B) the reasonable fees and
expenses of outside counsel for the Administrative Agent with
respect thereto and with respect to advising the Administrative
Agent as to its rights and responsibilities under this Agreement.
The Borrowers further agree to pay on demand all costs and
expenses of the Administrative Agent and the Lenders, if any
(including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement,
the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of
counsel for the Administrative Agent and each Lender in
connection with the enforcement of rights under this Section
9.04(a).
(b) The Borrowers agree to indemnify and hold harmless the
Administrative Agent and each Lender and each of their Affiliates
and their officers, directors, employees, agents and advisors
(each, an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any
investigation, litigation or proceeding or preparation of a
defense in connection therewith) the Notes, this Agreement, any
of the transactions contemplated herein or the actual or proposed
use of the proceeds of the
<PAGE>
37
Advances, except to the extent such claim, damage, loss, liability
or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's
gross negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section
9.04(b) applies, such indemnity shall be effective whether or not
such investigation, litigation or proceeding is brought by any
Borrower, its directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated. Each Borrower also agrees
not to assert any claim against the Administrative Agent, any
Lender, or any of their respective directors, officers,
employees, attorneys and agents, on any theory of liability, for
special, indirect, consequential or punitive damages arising out
of or otherwise relating to the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of
the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance or LIBO Rate Advance is made by any
Borrower to or for the account of a Lender other than on the last
day of the Interest Period for such Advance, as a result of a
payment or Conversion pursuant to Section 2.08(d) or (e), 2.10 or
2.12, acceleration of the maturity of the Notes pursuant to
Section 6.01 or for any other reason, or by an Eligible Assignee
to a Lender other than on the last day of the Interest Period for
such Advance upon an assignment of rights and obligations under
this Agreement pursuant to Section 9.07 as a result of a demand
by the Borrowers pursuant to Section 9.07(a), such Borrower
shall, upon demand by such Lender (with a copy of such demand to
the Administrative Agent), pay to the Administrative Agent for
the account of such Lender any amounts required to compensate
such Lender for any additional losses, costs or expenses that it
may reasonably incur as a result of such payment or Conversion,
including, without limitation, any loss (including loss of
Applicable Margin), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired
by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other
agreement of the Borrowers hereunder, the agreements and
obligations of the Borrowers contained in Sections 2.11, 2.14 and
9.04 shall survive the payment in full of principal, interest and
all other amounts payable hereunder and under the Notes.
SECTION 9.05. Right of Set-off. Upon (i) the
occurrence and during the continuance of any Event of Default and
(ii) the making of the request or the granting of the consent
specified by Section 6.01 to authorize the Administrative Agent
to declare the Notes due and payable pursuant to the provisions
of Section 6.01, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender to or for the
credit or the account of any Borrower against any and all of the
obligations of such Borrower now or hereafter existing under this
Agreement and the Note held by such Lender, whether or not such
Lender shall have made any demand under this Agreement or such
Note and although such obligations may be unmatured. Each Lender
agrees promptly to notify the applicable Borrower after any such
set-off and application, provided that the failure to give such
notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section are in
addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender may have.
SECTION 9.06. Binding Effect. This Agreement shall
become effective (other than Sections 2.01 and 2.03, which shall
only become effective upon satisfaction of the conditions
precedent set forth in Section 3.01) when it shall have been
executed by each Borrower and the Administrative Agent and when
the Administrative Agent shall have been notified by each Initial
Lender that such Initial Lender has executed it and thereafter
shall be binding upon and inure to the benefit of the Borrowers,
the Administrative Agent and each Lender and their respective
successors and assigns, except that no Borrower shall have the
right to assign its rights hereunder or any interest herein
without the prior written consent of the Lenders.
SECTION 9.07. Assignments and Participations. (a)
Each Lender may and, if demanded by the Borrowers (following a
demand by such Lender pursuant to Section 2.11 or 2.14) upon at
least 5 Business Days' notice to such Lender and the
Administrative Agent, will assign to one or more banks or other
financial institutions all or a portion of its rights and
obligations under this Agreement (including, without limitation,
all or a portion of its Commitment, the Revolving Credit Advances
owing to it and the Note or Notes held by it); provided, however,
that (i) each such assignment shall be of a constant, and not a
varying, percentage of all rights and obligations under this
Agreement (other than any right to make Competitive Bid Advances
and Competitive Bid Advances owing to
<PAGE>
38
it), (ii) except in the case of an assignment to a bank or other
financial institution that, immediately prior to such assignment, was
a Lender or an assignment of all of a Lender's rights and obligations
under this Agreement, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as
of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $10,000,000 or an
integral multiple of $1,000,000 in excess thereof, (iii) each
such assignment shall be to an Eligible Assignee, (iv) each such
assignment made as a result of a demand by the Borrowers pursuant
to this Section 9.07(a) shall be arranged by the Borrowers after
consultation with the Administrative Agent and shall be either an
assignment of all of the rights and obligations of the assigning
Lender under this Agreement or an assignment of a portion of such
rights and obligations made concurrently with another such
assignment or other such assignments that together cover all of
the rights and obligations of the assigning Lender under this
Agreement, (v) no Lender shall be obligated to make any such
assignment as a result of a demand by the Borrowers pursuant to
this Section 9.07(a) unless and until such Lender shall have
received one or more payments from either a Borrower or one or
more Eligible Assignees in an aggregate amount at least equal to
the aggregate outstanding principal amount of the Advances owing
to such Lender, together with accrued interest thereon to the
date of payment of such principal amount and all other amounts
payable to such Lender under this Agreement, and (vi) the parties
to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Note
subject to such assignment and a processing and recordation fee
of $3,000. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a
party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment
and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned
by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a
party hereto).
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in
or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other instrument or document furnished
pursuant hereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of any Borrower or the
performance or observance by any Borrower of any of its
obligations under this Agreement or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01
and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent,
such assigning Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and
authorizes the Administrative Agent to take such action as
Administrative Agent on its behalf and to exercise such powers
and discretion under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such
powers and discretion as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing that
it is an Eligible Assignee, together (if the entire interest is
being assigned) with any Note or Notes subject to such
assignment, the Administrative Agent shall, if such Assignment
and Acceptance has been completed and is in substantially the
form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrowers.
Within five Business Days after its receipt of such notice, each
Borrower, at its own expense, shall execute and deliver to the
Administrative Agent a new Note to the order of such Eligible
Assignee. Such new Note shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A hereto.
<PAGE>
39
(d) The Administrative Agent shall maintain at its address
referred to in Section 9.02 a copy of each Assignment and
Acceptance and each Assumption Agreement delivered to and
accepted by it and a register for the recordation of the names
and addresses of the Lenders and the Commitment of, and principal
amount of the Advances owing to, each Lender from time to time
(the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error,
and the Borrowers, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by any Borrower or any
Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Each Lender may sell participations to one or more
banks or other financial institutions (other than the Company or
any of its Affiliates) in or to all or a portion of its rights
and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances
owing to it and the Note or Notes held by it); provided, however,
that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Borrowers
hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain
the holder of any such Note for all purposes of this Agreement,
(iv) the Borrowers, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations
under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or
waiver of any provision of this Agreement or any Note, or any
consent to any departure by any Borrower therefrom, except to the
extent that such amendment, waiver or consent would reduce the
principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to
such participation, or postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to
such participation.
(i) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to
this Section 9.07, disclose to the assignee or participant or
proposed assignee or participant, any information relating to
the Borrowers furnished to such Lender by or on behalf of the
Borrowers; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall
agree to preserve the confidentiality of any Confidential
Information relating to the Borrowers received by it from such
Lender.
(j) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest
in all or any portion of its rights under this Agreement
(including, without limitation, the Advances owing to it and the
Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 9.08. Confidentiality. Neither the
Administrative Agent nor any Lender shall disclose any
Confidential Information to any other Person without the consent
of the Company, other than (a) to the Administrative Agent's or
such Lender's Affiliates (that are not competitors of the Company
and its Subsidiaries) and their officers, directors, employees,
agents and advisors and, as contemplated by Section 9.07(i), to
actual or prospective assignees and participants, and then only
on a confidential and a need-to-know basis, (b) as required by
any law, rule or regulation or judicial process and (c) as
requested or required by any state, federal or foreign authority
or examiner regulating banks or banking.
SECTION 9.09. Governing Law. This Agreement and the
Notes shall be governed by, and construed in accordance with, the
laws of the State of New York.
SECTION 9.10. Execution in Counterparts. This
Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 9.11. Jurisdiction, Etc. (a) Each of the
parties hereto hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of
any New York State court or
<PAGE>
40
federal court of the United States of America sitting in New York
City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the Notes,
or for recognition or enforcement of any judgment arising out of or
relating to this Agreement or the Notes, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect
of any such action or proceeding may be heard and determined in
any such New York State court or, to the extent permitted by law,
in such federal court. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law. Nothing in
this Agreement shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this
Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the Notes in any
New York State court or federal court sitting in New York City.
Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such
court.
SECTION 9.12. Waiver of Jury Trial. Each of the
Borrowers, the Administrative Agent and the Lenders hereby
irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the
Notes or the actions of the Administrative Agent or any Lender in
the negotiation, administration, performance or enforcement
hereof or thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
SPRINT CORPORATION
By /s/ Dennis C. Piper
Title: Vice President - Capital Markets
and Assistant Treasurer
SPRINT CAPITAL CORPORATION
By /s/ Dennis C. Piper
Title: Vice President and Treasurer
CITIBANK, N.A.,
as Administrative Agent
By /s/ Carolyn A. Kee
Title: Vice President
<PAGE>
41
INITIAL LENDERS
Administrative Agent
Commitment
$231,600,000 CITIBANK, N.A.
By /s/ Carolyn A. Kee
Title: Vice President
Syndication Agent
$175,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Robert Bottamedi
Title: Vice President
Documentation Agents
$175,000,000 BANK OF AMERICA, N.A.
By /s/ Fred L. Thorne
Title: Managing Director
$175,000,000 THE CHASE MANHATTAN BANK
By /s/ John J. Huber III
Title: Managing Director
Senior Managing Agents
$142,800,000 ABN AMRO BANK N.V.
By /s/ Joanna M. Riopelle
Title: Senior Vice President
By /s/ Sang W. Lee
Title: Assistant Vice President
<PAGE>
42
$142,800,000 CREDIT SUISSE FIRST BOSTON
By /s/ Kristin Lepri
Title: Associate
By /s/ Chris T. Horgan
Title: Vice President
$142,800,000 DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCH
By /s/ William W. McGinty
Title: Director
By /s/ Joel Makowsky
Title: Vice President
$142,800,000 FIRST UNION NATIONAL BANK
By /s/ Peter D. Steffen
Title: Senior Vice President
$142,800,000 FLEET NATIONAL BANK
By /s/ Sue Anderson
Title: Vice President
$142,800,000 ROYAL BANK OF CANADA
By /s/ Andrew C. Williamson
Title: Senior Manager
<PAGE>
43
$142,800,000 UBS AG, STAMFORD BRANCH
By /s/ Robert H. Riley, III
Title: Executive Director
By /s/ Paula Mueller
Title: Director
$142,800,000 WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By /s/ Lisa M. Walker
Title: Vice President
By /s/ Barry S. Wadler
Title: Associate
Managing Agents
$90,000,000 THE BANK OF NEW YORK
By /s/ James W. Whitaker
Title: Vice President
$90,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By /S/ Michelle A. Gumser
Title: Corporate Banking Officer
$90,000,000 BANQUE NATIONALE DE PARIS
By /s/ Arnaud Collin du Bocage
Title: Executive Vice President
and General Manager
By________________________________
Title:
$90,000,000 LEHMAN COMMERCIAL PAPER INC.
By /s/ Michele Swanson
Title: Authorized Signatory
<PAGE>
44
$90,000,000 MELLON BANK, N.A.
By /s/ Henry Berkena
Title: Assistant Vice President
$90,000,000 WACHOVIA BANK, N.A.
By /s/ Mark L. Thomas
Title: Vice President
Co-Agents
$60,000,000 THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By /s/ Hisashi Miyashiro
Title: Deputy General Manager
$60,000,000 COMMERZBANK AG, New York and
Grand Cayman Branches
By /s/ Carol Otten
Title: Assistant Vice President
/s/ Paul Karlin
Title: Assistant Vice President
$60,000,000 THE FUJI BANK, LIMITED
By /s/ Peter L. Chinnici
Title: Senior Vice President & Group Head
<PAGE>
45
$60,000,000 THE INDUSTRIAL BANK OF JAPAN, LIMITED
By /s/ William Kennedy
Title: Senior Vice President
$60,000,000 THE NORTHERN TRUST COMPANY
By /s/ Laurel A. Neu
Title: Vice President
Lenders
$35,000,000 THE SUMITOMO BANK, LIMITED,
CHICAGO BRANCH
By /s/ John H. Kemper
Title: Senior Vice President
$30,000,000 BANCA COMMERCIALE ITALIANA,
CHICAGO BRANCH
By /s/ Charles Dougherty
Title: Vice President
By /s/ T. Gallonetto
Title: Assistant Vice President
$30,000,000 BAYERISCHE LANDESBANK GIROZENTRALE,
CAYMAN ISLANDS BRANCH
By /s/ Alexander Kohnert
Title: First Vice President
By /s/ James H. Boyle
Title: Vice President
$30,000,000 BAYERISCHE HYPO-UND VEREINSBANK AG,
NEW YORK BRANCH
By /s/ Christian Walter
Title: Director
By /s/ Patricia M. Tresnan
Title: Director
<PAGE>
46
$30,000,000 WELLS FARGO BANK, N.A.
By /s/ Bradley A. Hardy
Title: Vice President
By /s/ Maria Lan
Title: Vice President
$18,000,000 BANK OF HAWAII
By /s/ Eric N. Pelletier
Title: Vice President
$15,000,000 CRESTAR BANK
By /s/ Latarnya B. Mason
Title: Assistant Vice President
$15,000,000 FIFTH THIRD BANK
By /s/ David C. Gordley
Title: Assistant Vice President
$15,000,000 FIRST HAWAIIAN BANK
By /s/ Donald C. Young
Title: Vice President
$15,000,000 THE NORINCHUKIN BANK, NEW YORK
BRANCH
By /s/ Yoshiro Niiro
Title: General Manager
$9,000,000 UMB BANK, N.A.
By /s/ David Proffitt
Title: Senior Vice President
<PAGE>
47
$10,000,000 ALLFIRST BANK
By /s/ Timothy A. Knabe
Title: Vice President
9,000,000 COMMERCE BANK, N.A.
By /s/ Julius Madas
Title: Senior Vice President
$3,000,000,000 Total of the Commitments
