Sixth Supplemental Indenture, dated as of May 14, 2018, to the Indenture, dated as of September 11, 2013, between Sprint Corporation and The Bank of New York Mellon Trust Company, N.A
EXHIBIT 4.1
SIXTH SUPPLEMENTAL INDENTURE
SIXTH SUPPLEMENTAL INDENTURE (this Supplemental Indenture), dated as of May 14, 2018, among SPRINT CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (the Company), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee (the Trustee).
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee have duly executed and delivered that certain Senior Notes Indenture, dated as of September 11, 2013 (the Indenture), providing for the issuance from time to time of unsecured debentures, notes or other evidences of indebtedness, to be issued in one or more series (the Securities);
WHEREAS, the Company, Sprint Communications, Inc., a Kansas corporation and a subsidiary of the Company, as Guarantor, and the Trustee have duly executed and delivered the (i) First Supplemental Indenture, dated as of September 11, 2013, to the Indenture, pursuant to which $2,250,000,000 aggregate principal amount of 7.250% Notes due 2021 (the 2021 Notes) were issued and are outstanding on the date hereof (the First Supplemental Indenture), (ii) Second Supplemental Indenture, dated as of September 11, 2013, to the Indenture, pursuant to which $4,250,000,000 aggregate principal amount of 7.875% Notes due 2023 (the 2023 Notes) were issued and are outstanding on the date hereof (the Second Supplemental Indenture), (iii) Third Supplemental Indenture, dated as of December 12, 2013, to the Indenture, pursuant to which $2,500,000,000 aggregate principal amount of 7.125% Notes due 2024 (the 2024 Notes) were issued and are outstanding on the date hereof (the Third Supplemental Indenture), (iv) Fourth Supplemental Indenture, dated as of February 24, 2015, to the Indenture, pursuant to which $1,500,000,000 aggregate principal amount of 7.625% Notes due 2025 (the 2025 Notes) were issued and are outstanding on the date hereof (the Fourth Supplemental Indenture), and (v) Fifth Supplemental Indenture, dated as of February 22, 2018, to the Indenture, pursuant to which $1,500,000,000 aggregate principal amount of 7.625% Notes due 2026 (the 2026 Notes and, collectively with the 2021 Notes, the 2023 Notes, the 2024 Notes and the 2025 Notes, the Subject Securities) were issued and are outstanding on the date hereof (the Fifth Supplemental Indenture and, collectively with the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture and the Fourth Supplemental Indenture, the Subject Supplemental Indentures), which, as applicable, govern the terms of the Subject Securities;
WHEREAS, on April 29, 2018, the Company, T-Mobile US, a Delaware corporation, (T-Mobile), Huron Merger Sub LLC, a Delaware limited liability company and a wholly owned subsidiary of T-Mobile (Merger Company), Superior Merger Sub Corporation, a Delaware corporation and a wholly owned subsidiary of Merger Company (Merger Sub), Galaxy Investment Holdings, Inc., a Delaware corporation (Galaxy), Starburst I, Inc., a Delaware corporation (Starburst and, together with Galaxy, the SoftBank US HoldCos), and, for the limited purposes of the covenants and representations set forth therein that are expressly obligations of such persons, Deutsche Telekom AG, an Aktiengesellschaft organized and existing under the laws of the Federal Republic of Germany, Deutsche Telekom Holding B.V., a besloten vennootschap met beperkte aansprakelijkheid organized and existing under the laws of the Netherlands, and SoftBank Group Corp., a Japanese kabushiki kaisha, entered into a Business Combination Agreement (as it may be amended, supplemented or modified from time to time, the Business Combination Agreement), pursuant to which (i) the SoftBank US HoldCos may merge with and into Merger Company, with Merger Company continuing as the surviving entity and as a wholly owned subsidiary of T-Mobile (the HoldCo Mergers) and (ii) Merger Sub will merge with and into the Company, with
the Company as the surviving corporation and a wholly owned direct or indirect subsidiary of T-Mobile (the Sprint Merger and, together with the HoldCo Mergers (if they occur), the Mergers), in each case on the terms and subject to the conditions set forth in the Business Combination Agreement. Following the Mergers, T-Mobile is expected to contribute the Company to T-Mobile USA or otherwise cause the Company to become a direct or indirect wholly-owned subsidiary of T-Mobile USA (the Contribution and, collectively with the Mergers, the T-Mobile Transaction);
WHEREAS, Section 902 of the Indenture provides, among other things, that the Indenture, as amended and supplemented by the Subject Supplemental Indentures, may be amended or supplemented by a supplemental indenture thereto with the consent of the Holders of not less than a majority in principal amount of all Outstanding Securities affected by such supplemental indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to amend and supplement or further amend and supplement, as applicable, (1) Section 1.02 of each of the Subject Supplemental Indentures; (2) Section 101 of the Indenture; and (3) Article VIII of the Indenture (collectively, the Subject Amendments), in each case on the terms set forth in the Companys Consent Solicitation Statement dated May 7, 2018 (as amended to the date hereof, the Consent Solicitation Statement);
WHEREAS, the Company solicited, and has received, consents to the Subject Amendments upon the terms and subject to the conditions set forth in the Consent Solicitation Statement from Holders representing at least a majority in aggregate principal amount of each series of the outstanding Subject Securities;
WHEREAS, at and subject to the consummation of the T-Mobile Transaction, T-Mobile and T-Mobile USA will enter into a supplemental indenture to the Indenture to provide unconditional and irrevocable guarantees in respect of each series of Subject Securities;
WHEREAS, for the purposes hereinabove recited, and pursuant to due corporate action, the Company has duly determined to execute and deliver to the Trustee this Supplemental Indenture; and
WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture a valid and binding instrument in accordance with its terms have been done and performed, and the execution and delivery hereof have been in all respects duly authorized.
NOW, THEREFORE, in consideration of the premises, the covenants and other agreements contained herein and other good and valuable consideration, the sufficiency of which is hereby confirmed, the Company and the Trustee mutually covenant and agree as follows:
ARTICLE ONE
AMENDMENT TO THE SUBJECT SUPPLEMENTAL INDENTURES
Section 1.01. Effective on the date hereof, Section 1.02 of each of the Subject Supplemental Indentures is hereby amended or further amended, as applicable, by adding the following at the end of the definition of Change of Control:
Notwithstanding the foregoing, the T-Mobile Transaction shall not constitute a Change of Control.
Section 1.02. Effective on the date hereof, Section 1.02 of each of the Subject Supplemental Indentures is hereby amended or further amended, as applicable, by adding the following definitions:
Business Combination Agreement means that certain Business Combination Agreement, dated as of April 29, 2018, made by and among the Company, T-Mobile US, Inc., a Delaware corporation, Huron Merger Sub LLC, a Delaware limited liability company and a wholly owned subsidiary of T-Mobile US, Inc., Superior Merger Sub Corporation, a Delaware corporation and a wholly owned subsidiary of Huron Merger Sub LLC, Galaxy Investment Holdings, Inc., a Delaware corporation, Starburst I, Inc., a Delaware corporation, and, for the limited purposes of the covenants and representations set forth therein that are expressly obligations of such persons, Deutsche Telekom AG, an Aktiengesellschaft organized and existing under the laws of the Federal Republic of Germany, Deutsche Telekom Holding B.V., a besloten vennootschap met beperkte aansprakelijkheid organized and existing under the laws of the Netherlands, and SoftBank Group Corp., a Japanese kabushiki kaisha, as it may be amended, supplemented or modified from time to time.
T-Mobile Transaction means the acquisition of the Company by T-Mobile US, Inc. pursuant to the Business Combination Agreement, including without limitation the Merger and the SoftBank US Mergers (each as defined in the Business Combination Agreement), the contribution of the Company to T-Mobile USA, Inc. and related transactions.
Section 1.03. Effective immediately prior to the consummation of the T-Mobile Transaction, Section 1.02 of each of the Subject Supplemental Indentures is hereby amended or further amended, as applicable, by deleting the definition of Permitted Holder in its entirety and replacing it with the following:
Permitted Holders means (i) SoftBank Corp., a Japanese kabushiki kaisha, and/or any of its successors and/or Affiliates (including any fund or collective investment vehicle for which it or any of its Affiliates serves as the general partner or managing member); (ii) T-Mobile US, Inc., a Delaware corporation, and/or any of its successors and/or Affiliates; (iii) Deutsche Telekom, AG, an Aktiengesellschaft organized and existing under the laws of the Federal Republic of Germany, and/or any of its successors and/or Affiliates; and (iv) any group (as such term is used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) the members of which include only any or all of the Permitted Holders specified in clauses (i), (ii) and (iii) above.
ARTICLE TWO
AMENDMENT TO THE INDENTURE
Section 2.01. Effective immediately prior to the consummation of the T-Mobile Transaction, Section 101 of the Indenture is hereby amended by adding the following definition:
T-Mobile USA means T-Mobile USA, Inc. until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter T-Mobile USA shall mean such successor Person.
Section 2.02. Effective immediately prior to the consummation of the T-Mobile Transaction, Article VIII of the Indenture is hereby deleted in its entirety and replaced with the following:
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company may consolidate with or merge into any other Person only if:
(a) either (1) the Company is the surviving Person, or (2) the successor Person is a Corporation, partnership, limited liability company or trust organized and existing under the laws of the United States, any State thereof, the District of Columbia or any territory thereof and assumes the Companys obligations under the Securities and this Indenture pursuant to a supplemental indenture reasonably satisfactory to the Trustee, provided that in the case when such Person is not a Corporation a co-obligor of the Securities is a Corporation; and
(b) after giving effect to the transaction no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, has happened and is continuing; and
(c) the Company has delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that such transaction and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into, any other Person, the successor Person formed by such consolidation or into which the Company is merged shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
Section 803. T-Mobile USA May Consolidate, Etc., Only on Certain Terms.
T-Mobile USA may consolidate with or merge into any other Person or convey, transfer or lease all or substantially all of its properties and assets to any Person only if:
(a) either (1) T-Mobile USA is the surviving Person, or (2) the successor Person is a Corporation, partnership, limited liability company or trust organized and existing under the laws of the United States, any State thereof, the District of Columbia or any territory thereof and assumes T-Mobile USAs obligations under its guarantee of the Securities and the Indenture pursuant to a supplemental indenture reasonably satisfactory to the Trustee; and
(b) after giving effect to the transaction no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, has happened and is continuing; and
(c) T-Mobile USA has delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that such transaction and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section 804. Successor Substituted.
Upon any consolidation of T-Mobile USA with, or merger of T-Mobile USA into, any other Person or any conveyance, transfer or lease of all or substantially all the properties and assets of T-Mobile USA in accordance with Section 803, the successor Person formed by such consolidation or into which T-Mobile USA is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, T-Mobile USA under this Indenture with the same effect as if such successor Person had been named as T-Mobile USA herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
Section 3.01 Effect of Supplemental Indenture; Conflicts with Indenture. This Supplemental Indenture is executed by the Company and the Trustee upon the Companys request, pursuant to the provisions of the Indenture, and the terms and conditions hereof shall be deemed to be part of the Indenture for all purposes. The Indenture, as supplemented and amended by this Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed. Notwithstanding the foregoing, to the extent that any of the terms of this Supplemental Indenture are inconsistent with, or conflict with, the terms of the Indenture, the terms of this Supplemental Indenture shall govern.
Section 3.02 Counterparts. This Supplemental Indenture may be executed in counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 3.03 Trustee. The Trustee assumes no responsibility for the correctness of the recitals herein contained, which shall be taken as the statements of the Company. The Trustee makes no representations and shall have no responsibility as to the validity or sufficiency of this Supplemental Indenture or the due authorization and execution hereof by the Company.
Section 3.04 Headings. The Article and Section headings contained herein are for convenience only and shall not affect the construction of this Supplemental Indenture.
Section 3.05 Governing Law. This Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written.
SPRINT CORPORATION | ||
By: | /s/ Janet M. Duncan | |
Name: Janet M. Duncan | ||
Title: Vice President and Treasurer |
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
By: | /s/ Lawrence M. Kusch | |
Name: | Lawrence M. Kusch | |
Title: | Vice President |
Signature Page to Sixth Supplemental Indenture