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): December 2, 1998
BELL ATLANTIC - PENNSYLVANIA, INC.
(Exact Name of Registrant as Specified in Its Charter)
Pennsylvania
(State or Other Jurisdiction of Incorporation)
No. 1-6393 No. 23-0397860
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(Commission File Number) I.R.S. Employer Identification
1717 Arch Street Philadelphia, Pennsylvania 19103
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(Address of Principal Executive Offices)
(215) 466-9900
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(Registrant's Telephone Number, Including Area Code)
Not Applicable
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(Former Name or Former Address, if Changed Since Last Report)
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Item 7. Financial Statements and Exhibits.
(c) Exhibits:
The exhibits listed in the accompanying Index to Exhibits relate to
the Registration Statements (Nos. 33-50869 and 33-55252) on Form
S-3 of Bell Atlantic - Pennsylvania, Inc., formerly The Bell
Telephone Company of Pennsylvania (the "Company"), and are filed
herewith for incorporation by reference in such Registration
Statements.
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Index to Exhibits
Exhibit Number
Per Item 601
of Regulation S-K Description of Document
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1-a Underwriting Agreement, dated December 2,
1998, between the Company and Merrill
Lynch, Pierce, Fenner & Smith
Incorporated, as Representative of the
Underwriters named therein
4-a Indenture, dated as of September 1, 1998,
between the Company and The Chase
Manhattan Bank, Trustee
4-b Certificate, dated as of December 2,
1998, pursuant to Section 2.02(b) of the
Indenture, dated as of September 1, 1998,
between the Company and The Chase
Manhattan Bank, as Trustee
4-c Form of the Company's Thirty Year 6%
Debentures, due December 1, 2028
(contained in Exhibit 4-b).
12 Computation of Ratio of Earnings to Fixed Charges
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
BELL ATLANTIC - PENNSYLVANIA, INC.
By /s/ Neil D. Olson
--------------------------------
Neil D. Olson
Treasurer
Dated: December 4, 1998
BELL ATLANTIC -- PENNSYLVANIA, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
New York, New York
December 2, 1998
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Bell Atlantic -- Pennsylvania, Inc., a Pennsylvania corporation
("Company"), may issue and sell from time to time series of its debt securities
registered under the registration statement referred to in Paragraph 1(a) hereof
("Securities" and individually "Security"). The Company proposes to sell to the
underwriters named in Schedule II hereto ("Underwriters"), for whom you are
acting as representatives ("Representative"), a series of Securities, of the
designation, with the terms and in the aggregate principal amount specified in
Schedule I hereto ("Underwritten Securities" and individually "Underwritten
Security"). If the firm or firms listed in Schedule II hereto include only the
firm or firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representative" shall each be deemed to refer to such firm or firms.
1. The Company represents, warrants and agrees that:
(a) Registration statements (Nos. 33-50869 and 33-55252), including a
prospectus, with respect to the Securities have been prepared by the
Company in conformity with the requirements of the Securities Act of
1933, as amended ("Act"), and the rules and regulations ("Rules and
Regulations") of the Securities and Exchange Commission ("Commission")
thereunder and have become effective. As used in this Agreement, (i)
"Registration Statement" means each such registration statement, as
amended and supplemented to the date hereof; (ii) "Preliminary
Prospectus" means each prospectus (including all documents incorporated
therein by reference) included in the most recently filed Registration
Statement, or amendments or supplements thereof, before it became
effective under the Act, including any prospectus filed with the
Commission pursuant to Rule 424(a) of the Rules and Regulations; (iii)
"Basic Prospectus" means the prospectus included in the most recently
filed Registration Statement, and (iv) "Prospectus" means the Basic
Prospectus, together with any prospectus amendment or supplement
(including in each case all documents incorporated therein by reference)
specifically relating to the Underwritten Securities, as filed with the
Commission pursuant to paragraph (b) of Rule 424 of the Rules and
Regulations. The Commission has not issued any order preventing or
suspending the use of any Prospectus, and no proceedings for such
purposes have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the
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2
Commission, and any request on the part of the Commission for additional
information has been complied with.
(b) The Registration Statements and each Prospectus contain, and (in
the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made)
will contain at all times during the period specified in Paragraph 7(c)
hereof, all statements which are required by the Act, the Securities
Exchange Act of 1934, as amended ("Exchange Act"), the Trust Indenture
Act of 1939, as amended ("Trust Indenture Act"), and the rules and
regulations of the Commission under such Acts; the indenture, including
any amendments and supplements thereto, pursuant to which the
Underwritten Securities will be issued ("Indenture") will conform with
the requirements of the Trust Indenture Act and the rules and
regulations of the Commission thereunder; and the Registration
Statements and each Prospectus do not, and (in the case of any amendment
or supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date
as of which this representation is being made) will not, at any time
during the period specified in Paragraph 7(c) hereof, contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided that the Company makes no representation or
warranty as to information contained in or omitted from any Registration
Statement or any Prospectus in reliance and based upon information
furnished to the Company through the Representative by or on behalf of
any Underwriter, or as to any statements in or omissions from the
Statement of Eligibility of the Trustee under the Indenture.
(c) Neither the Company nor any of its subsidiaries (as defined in
Paragraph 14 hereof) is in violation of its corporate charter or by-laws
or in default under any agreement, indenture or instrument, except for
such defaults that would not result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company or the Company and its subsidiaries
taken as a whole, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"); and the execution, delivery and
performance of this Agreement, the Indenture, the Underwritten
Securities, and any Delayed Delivery Contracts (as defined in Paragraph
3 hereof) and the consummation of the transactions contemplated herein,
and in the Prospectus (including the issuance and sale of the
Underwritten Securities and the use of the proceeds from the sale
thereof as described in the Prospectus under the caption "Use of
Proceeds") have been duly authorized by all necessary corporate action
and do not and will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to, any material agreement, indenture or
instrument to which the Company or any of its subsidiaries is a party or
by which any of them is bound or to which any of their respective
properties or assets is subject, nor will such action result in a
material violation of the charter or by-laws of the Company or any of
its subsidiaries or any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company,
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3
any of its subsidiaries or their respective properties; and except as
required by the Act, the Trust Indenture Act, the Exchange Act and
applicable state securities laws and except as set forth in Paragraph
1(m) hereof, no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for the
execution, delivery and performance of this Agreement, the Delayed
Delivery Contracts and the Indenture or the consummation of the
transactions contemplated hereby and thereby.
(d) Except as described in or contemplated by the Registration
Statements and each Prospectus, there has been no Material Adverse
Effect from the dates as of which information is given in the
Registration Statements and each Prospectus.
(e) PricewaterhouseCoopers (formerly Coopers & Lybrand), whose report
appears in the Company's most recent Annual Report on Form 10-K which is
incorporated by reference in each Prospectus, are independent
accountants as required by the Act and the Rules and Regulations.
(f) On the Delivery Date (as defined in Paragraph 6 hereof) (i) the
Indenture will have been validly authorized, executed and delivered by
the Company and duly qualified under the Trust Indenture Act and will
constitute the legally binding obligation of the Company, (ii) the
Underwritten Securities will have been validly authorized and executed
and, upon payment therefor as provided in this Agreement, will be
validly issued and outstanding, and will constitute legally binding
obligations of the Company entitled to the benefits of the Indenture,
and (iii) the Underwritten Securities and the Indenture will conform to
the descriptions thereof contained in the Prospectus.
(g) This Agreement has been validly authorized, executed and
delivered by the Company.
(h) The Company and each of its subsidiaries have been duly
incorporated and are validly existing and remain subsisting corporations
under the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and in good standing as foreign
corporations in each jurisdiction in which their respective ownership of
properties or the conduct of their respective businesses requires such
qualification, except where the failure to so qualify would not have a
Material Adverse Effect, and have power and authority necessary to own
or hold their respective properties and to conduct the businesses in
which they are engaged and, with respect to the Company, to enter into
and perform its obligations under this Agreement.
(i) There is no material action, suit or proceeding before any court
or governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any of its subsidiaries, which is required to be disclosed in
any Prospectus (other than as disclosed therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
properties or assets
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4
thereof or the consummation of the transactions contemplated in this
Agreement or the performance by the Company of its obligations
hereunder.
(j) The financial statements filed as part of the Registration
Statements or included in any Preliminary Prospectus present, or (in the
case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made)
will present at all times during the period specified in Paragraph 7(c)
hereof, fairly, the financial condition and results of operations of the
Company and its consolidated subsidiaries, at the dates and for the
periods indicated, and have been, and (in the case of any amendment or
supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date
as of which this representation is being made) will be at all times
during the period specified in Paragraph 7(c) hereof, prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules incorporated by reference in any Prospectus present
fairly in accordance with GAAP the information required to be stated
therein. The pro forma financial statements and the related notes
thereto incorporated by reference in the Registration Statements and any
Prospectus present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances
referred to therein.
(k) The documents incorporated by reference into any Preliminary
Prospectus or Prospectus have been, and (in the case of any amendment or
supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date
as of which this representation is being made) will be at all times
during the period specified in Paragraph 7(c) hereof, prepared by the
Company in conformity with the applicable requirements of the Act and
Rules and Regulations and the Exchange Act and the rules and regulations
of the Commission thereunder and such documents have been, or (in the
case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made)
will be at all times during the period specified in Paragraph 7(c)
hereof, timely filed as required thereby.
(l) There are no contracts or other documents which are required to
be filed as exhibits to the Registration Statements by the Act or by the
Rules and Regulations, or which were required to be filed as exhibits to
any document incorporated by reference in any Prospectus by the Exchange
Act or the rules and regulations of the Commission thereunder, which
have not been filed as exhibits to the Registration Statements or to
such document or incorporated therein by reference as permitted by the
Rules and
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5
Regulations or the rules and regulations of the Commission under the
Exchange Act as required.
(m) The Company has filed with the Commonwealth of Pennsylvania
Public Utilities Commission ("PUC") an application with respect to the
issue and sale of securities, including the Underwritten Securities. The
PUC has entered its order authorizing the issuance and sale thereof,
subject to the limitations on the terms and conditions of such issuance
and sale set forth in such order and such order has become final and has
not been appealed.
(n) The Company and each of its subsidiaries has good and valid title
to all or substantially all of their respective properties.
(o) The Company is not, and upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectus will not be,
an "investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act").
2. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
each Underwriter, severally and not jointly, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
and on the other terms set forth in Schedule I hereto, the principal amount of
the Underwritten Securities set forth opposite its name in Schedule II hereto.
3. Any offer to purchase Underwritten Securities by institutional
investors solicited by the Underwriters for delayed delivery shall be made
pursuant to contracts substantially in the form of Exhibit A attached hereto,
with such changes therein as the Company and the Representative may approve
("Delayed Delivery Contracts"). The Company shall have the right, in its sole
discretion, to approve or disapprove each such institutional investor.
Underwritten Securities which are subject to Delayed Delivery Contracts are
herein sometimes called "Delayed Delivery Underwritten Securities" and
Underwritten Securities which are not subject to Delayed Delivery Contracts are
herein sometimes called "Immediate Delivery Underwritten Securities".
Contemporaneously with the purchase on the Delivery Date by the
Underwriters of the Immediate Delivery Underwritten Securities pursuant to this
Agreement, the Company will pay to the Representative, for the account of the
Underwriters, the compensation specified in Schedule I hereto for arranging the
sale of Delayed Delivery Underwritten Securities. The Underwriters shall have no
responsibility with respect to the validity or performance of any Delayed
Delivery Contracts.
For the purposes of determining the principal amount of Immediate
Delivery Underwritten Securities to be purchased by each Underwriter, there
shall be deducted from the principal amount of Underwritten Securities to be
purchased by such Underwriter as set forth in Schedule II hereto that portion of
the aggregate principal amount of Delayed Delivery
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6
Underwritten Securities that the principal amount of Underwritten Securities to
be purchased by such Underwriter as set forth in Schedule II hereto bears to the
aggregate principal amount of Underwritten Securities set forth there to be
purchased by all of the Underwriters (in each case as adjusted by the
Representative to avoid fractions of the minimum principal amount in which the
Underwritten Securities may be issued), except to the extent that the
Representative determines, in its discretion, that such deduction shall be
otherwise than in such proportion and so advises the Company.
4. The Company shall not be obligated to deliver any Underwritten
Securities except upon payment for all Immediate Delivery Underwritten
Securities to be purchased pursuant to this Agreement as hereinafter provided.
5. If any Underwriter defaults in the performance of its obligations
under this Agreement, the remaining non-defaulting Underwriters, if any, shall
be obligated to purchase the Immediate Delivery Underwritten Securities which
the defaulting Underwriter agreed but failed to purchase in the respective
proportions which the principal amount of Underwritten Securities set forth in
Schedule II hereto to be purchased by each remaining non-defaulting Underwriter
set forth therein bears to the aggregate principal amount of Underwritten
Securities set forth therein to be purchased by all the remaining non-defaulting
Underwriters; provided that the remaining non-defaulting Underwriters shall not
be obligated to purchase any Immediate Delivery Underwritten Securities if the
aggregate principal amount of Immediate Delivery Underwritten Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase exceeds
9.09% of the total principal amount of Underwritten Securities, and any
remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the principal amount of Underwritten Securities set forth in
Schedule II hereto to be purchased by it. If the foregoing maximums are
exceeded, the remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Representative who so agree, shall have the right, but shall
not be obligated, to purchase, in such proportion as may be agreed upon among
them, all the Immediate Delivery Underwritten Securities. If the remaining
Underwriters or other underwriters satisfactory to the Representative do not
elect to purchase the Immediate Delivery Underwritten Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company, except that the Company will continue to be liable
for the payment of expenses as set forth in Paragraph 7(k) hereof.
Nothing contained in this Paragraph 5 shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Immediate Delivery Underwritten Securities of a defaulting or withdrawing
Underwriter, either the Representative or the Company may postpone the Delivery
Date for up to seven full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statements, any Prospectus or in any other
document or arrangement.
6. Delivery of and payment for the Immediate Delivery Underwritten
Securities shall be made at such address, date and time as may be specified in
Schedule I hereto. This date and time
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7
are sometimes referred to as the "Delivery Date". On the Delivery Date the
Company shall deliver the Immediate Delivery Underwritten Securities to The
Depository Trust Company, on behalf of the Representative, for the account of
each Underwriter against payment to the Company by wire transfer of immediately
available funds to a bank account designated by the Company. Time shall be of
the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Immediate Delivery Underwritten Securities shall
be in registered form and in such denominations as may be set forth on Schedule
I hereto. The certificates representing the Immediate Delivery Underwritten
Securities shall be registered in the name of Cede & Co. and shall be made
available for inspection by the Representative in New York, New York not later
than 2:00 P.M., local time, on the business day prior to the Delivery Date.
7. The Company agrees:
(a) To furnish promptly to the Representative and to counsel for the
Underwriters a conformed copy of each Registration Statement as
originally filed and each amendment or supplement thereto filed prior to
the date hereof or relating to or covering the Underwritten Securities,
and a copy of each Prospectus filed with the Commission, including all
documents incorporated therein by reference and all consents and
exhibits filed therewith;
(b) To deliver promptly to the Representative such reasonable number
of the following documents as the Representative may request: (i)
conformed copies of the Registration Statements (excluding exhibits
other than the computation of the ratio of earnings to fixed charges,
the Indenture and this Agreement), (ii) each Prospectus and (iii) any
documents incorporated by reference in the Prospectus;
(c) During such period following the date hereof as, in the opinion
of counsel for the Underwriters, any Prospectus is required by law to be
delivered, to comply with the Act, the Exchange Act, the Trust Indenture
Act and the rules and regulations under each thereof, so as to permit
the completion of the distribution of the Underwritten Securities as
contemplated in this Agreement and in each Prospectus. If at any time
when a prospectus is required by the Act to be delivered in connection
with sales of the Underwritten Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Underwriters or for the Company,
to amend any Registration Statement or amend or supplement any
Prospectus in order that such Prospectus will not include any untrue
statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser,
or if it shall be necessary, in the opinion of such counsel, at any such
time to amend any Registration Statement or amend or supplement any
Prospectus in order to comply with the requirements of the Act or the
Rules and Regulations, the Company will promptly prepare and file with
the Commission, subject to Paragraph (d) below, such amendment or
supplement as may be necessary to correct such statement or omission or
to make any such Registration Statement or any such Prospectus comply
with such
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8
requirements, and the Company will furnish to the Underwriters such
number of copies of such amendment or supplement as the Underwriters may
reasonably request.
(d) Prior to filing with the Commission during the period referred to
in (c) above (i) any amendment or supplement to any Registration
Statement, (ii) any Prospectus or any amendment or supplement thereto or
(iii) any document incorporated by reference in any of the foregoing or
any amendment or supplement to such incorporated document, to furnish a
copy thereof to the Representative and to counsel for the Underwriters
and not to file any document that shall have been disapproved by the
Representative;
(e) To advise the Representative promptly (i) when any post-effective
amendment to any Registration Statement relating to or covering the
Underwritten Securities becomes effective or any supplement to any
Prospectus shall have been filed, (ii) of any comments from the
Commission or any request or proposed request by the Commission for an
amendment or supplement to any Registration Statement (insofar as the
amendment or supplement relates to or covers the Underwritten
Securities), to any Prospectus, to any document incorporated by
reference in any of the foregoing or for any additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of any Registration Statement or any order directed to any
Prospectus or any document incorporated therein by reference or the
initiation or threat of any stop order proceeding or of any challenge to
the accuracy or adequacy of any document incorporated by reference in
any Prospectus, (iv) of receipt by the Company of any notification with
respect to the suspension of the qualification of the Underwritten
Securities for sale in any jurisdiction or the initiation or threat of
any proceeding for that purpose and (v) of the happening of any event
which makes untrue any statement of a material fact made in any
Registration Statement (insofar as such Registration Statement relates
to or covers the Underwritten Securities) or any Prospectus or which
requires the making of a change in any Registration Statement or any
Prospectus in order to make any material statement therein not
misleading;
(f) If, during the period referred to in (c) above, the Commission
shall issue a stop order suspending the effectiveness of any
Registration Statement, to make every reasonable effort to obtain the
lifting of that order at the earliest possible time;
(g) As soon as practicable, to make generally available to its
security holders and to deliver to the Representative an earnings
statement, conforming with the requirements of Section 11(a) of the Act,
covering a period of at least twelve months beginning after the latest
of (i) the most recent effective date of the registration statement
relating to part of the Underwritten Securities, (ii) the effective date
of the most recent post-effective amendment to the Last Registration
Statement that became effective prior to the date of this Agreement and
(iii) the date of the Company's most recent Annual Report on Form 10-K
filed with the Commission prior to the date of this Agreement.
(h) So long as any of the Underwritten Securities are outstanding, to
furnish to the Representative copies of all reports and financial
statements furnished by the Company to
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9
each securities exchange on which securities issued by the Company may
be listed pursuant to requirements of or agreements with such exchange
or to the Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder;
(i) To endeavor to qualify the Underwritten Securities for offer and
sale under the securities laws of such jurisdictions as the
Representative may reasonably request and to maintain such
qualifications in effect for as long as may be required for the
distribution of the Underwritten Securities; provided, however, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject;
(j) To use its best efforts to obtain the listing of the Underwritten
Securities on the securities exchange, if any, set forth on Schedule I
("Stock Exchange") on or prior to the Delivery Date and to cause such
listing to be continued so long as any amount of the Securities remains
outstanding; to furnish from time to time any and all documents,
instruments, information and undertakings that may be necessary in order
to effect such listing; and to maintain the same until none of the
Underwritten Securities is outstanding or until such time as payment of
principal of and premium, if any, and interest on all the Underwritten
Securities has been duly provided for, whichever is earlier; provided
that if the Company can no longer reasonably maintain such listing, the
Company shall use its best efforts to obtain and maintain the quotation
for, or listing of, the Underwritten Securities on such other securities
exchange or exchanges as the Company may, with the approval of the
Representative, determine;
(k) To pay the costs incident to the authorization, issuance, sale
and delivery of the Underwritten Securities and any taxes payable in
that connection; the costs incident to the preparation, printing and
filing under the Act of the Registration Statements and any amendments,
supplements and exhibits thereto; the costs incident to the preparation,
printing and filing of any document and any amendments and exhibits
thereto required to be filed by the Company under the Exchange Act; the
costs of distributing the Registration Statements as originally filed
and each amendment and post-effective amendment thereof (including
exhibits), any Preliminary Prospectus, each Prospectus and any documents
incorporated by reference in any of the foregoing documents; the costs
of printing this Agreement and the Delayed Delivery Contracts, if any;
the fees and disbursements of the Company's counsel, accountants and
other advisors; the fees and expenses of the Trustee, including the fees
and disbursements of counsel for the Trustee in connection with the
Indenture and the Underwritten Securities, to the extent the Trustee or
its counsel, as the case may be, requires reimbursement thereof; the
costs of any filings with the National Association of Securities
Dealers, Inc.; fees paid to rating agencies in connection with the
rating of the Securities, including the Underwritten Securities; the
fees and expenses of qualifying the Underwritten Securities under the
securities laws of the several jurisdictions as provided in this
Paragraph and of preparing and printing a Blue Sky Memorandum (including
fees of counsel to the Underwriters);
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10
the cost of listing the Underwritten Securities on the Stock Exchange;
and all other costs and expenses incident to the performance of the
Company's obligations under this Agreement; provided that, except as
provided in this Paragraph and in Paragraph 11 hereof, the Underwriters
shall pay their own costs and expenses, including the fees and expenses
of their counsel, any transfer taxes on the Underwritten Securities
which they may sell and the expenses of advertising any offering of the
Underwritten Securities made by the Underwriters;
(l) Until the termination of the offering of the Underwritten
Securities, to timely file all documents, and any amendments to
previously filed documents, required to be filed by the Company pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; and
(m) During the period beginning on the date hereof and continuing to
the Delivery Date, without the consent of the Representative, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company with maturities longer than one year, other
than the Underwritten Securities to the Underwriters.
8. (a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus or Prospectus (or any amendment
or supplement thereto), or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to
Paragraph 8(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of outside counsel chosen by the
Representative), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue
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11
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representative expressly for use in any Registration
Statement (or any amendment thereto) or any Preliminary Prospectus or Prospectus
(or any amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed any Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Paragraph 8, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in any Registration Statement (or any amendment thereto) or any Preliminary
Prospectus or Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representative expressly for use in any Registration
Statement (or any amendment thereto) or such Preliminary Prospectus or
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties indemnified
pursuant to Paragraph 8(a) above, counsel to the indemnified parties shall be
selected by the Representative, and, in the case of parties indemnified pursuant
to Paragraph 8(b) above, counsel to the indemnified parties shall be selected by
the Company. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Paragraph 8 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or
<PAGE>
12
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Paragraph 8 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Underwritten Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the
Underwritten Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Underwritten Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, bear to the aggregate initial offering price of the Underwritten
Securities.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Paragraph 8(e) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Paragraph 8(e). The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Paragraph 8(e) shall be deemed
to include any
<PAGE>
13
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Paragraph 8(e), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Underwritten Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
any such untrue or alleged untrue statement or omission or alleged omission.
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 Paragraph 8(e), each person, if any, who controls
an Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed any
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Paragraph 8(e) are several
in proportion to the principal amount of Underwritten Securities set forth
opposite their respective names in Schedule II hereto and not joint.
(f) The indemnity agreements contained in this Paragraph and the
representations, warranties and agreements of the Company in Paragraph 1 and
Paragraph 7 hereof shall survive the delivery of the Underwritten Securities and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
indemnified party.
9. (a) The Representative may terminate this Agreement, by notice to the
Company, at any time at or prior to the delivery of and payment for the
Immediate Delivery Underwritten Securities, (i) if there has been, since the
time of execution of this Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company or the Company and its subsidiaries taken as a
whole, whether or not arising in the ordinary course of business, the effect of
which is such as to make it, in the judgment of the Representative,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (ii) if there has occurred any
material adverse change in the financial markets in the United States, any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representative,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or
<PAGE>
14
(iii) if trading in any securities of the Company or Bell Atlantic Corporation
has been suspended or materially limited by the Commission, or if trading
generally on the American Stock Exchange or the New York Stock Exchange or in
the Nasdaq National Market has been suspended or materially limited, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Paragraph 9, such
termination shall be without liability of any party to any other party except as
provided in Paragraph 11 hereof, and provided further that Paragraphs 1 and 8
shall survive such termination and remain in full force and effect.
10. The respective obligations of the Underwriters under the Agreement
with respect to the Underwritten Securities are subject to the accuracy, on the
date hereof and on the Delivery Date, of the representations and warranties of
the Company contained herein, to performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions
applicable to the Underwritten Securities.
(a) At or before the Delivery Date, no stop order suspending the
effectiveness of any Registration Statement nor any order directed to
any document incorporated by reference in any Prospectus shall have been
issued and prior to that time no stop order proceeding shall have been
initiated or threatened by the Commission and no challenge shall have
been made to the accuracy or adequacy of any document incorporated by
reference in any Prospectus; any request of the Commission for inclusion
of additional information in any Registration Statement or any
Prospectus or otherwise shall have been complied with; and after the
date hereof the Company shall not have filed with the Commission any
amendment or supplement to any Registration Statement or any Prospectus
(or any document incorporated by reference therein) that shall have been
disapproved by the Representative.
(b) No Underwriter shall have discovered and disclosed to the Company
on or prior to the Delivery Date that any Registration Statement or any
Prospectus contains an untrue statement of a fact which, in the opinion
of counsel for the Underwriters, is material or omits to state a fact
which, in the opinion of such counsel, is material and is required to be
stated therein or is necessary to make the statements therein not
misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Underwritten
Securities and the Indenture and the form of the Registration
Statements, each Prospectus (other than financial statements and other
financial data) and all other legal matters relating to this Agreement
and the transactions contemplated hereby shall be satisfactory in all
respects to Simpson Thacher & Bartlett, counsel for the Underwriters,
and the Company shall have furnished to such
<PAGE>
15
counsel all documents and information that such counsel may reasonably
request to enable it to pass upon such matters.
(d) The General Counsel of the Company shall have furnished to the
Representative his opinion addressed to the Underwriters and dated the
Delivery Date, as General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is
validly existing and remains a subsisting corporation under the laws
of the Commonwealth of Pennsylvania;
(ii) The Company is duly qualified to do business and is
in good standing as a foreign corporation in all jurisdictions in
which its ownership of property or the conduct of its business
requires such qualification (except where the failure to so qualify
would not have a Material Adverse Effect), and has all power and
authority necessary to own its properties and conduct the business in
which it is engaged as described in the Prospectus;
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust Indenture
Act and, assuming due authentication, execution and delivery by the
Trustee, constitutes a valid and legally binding instrument of the
Company enforceable in accordance with its terms;
(iv) The Immediate Delivery Underwritten Securities have
been duly authorized, executed and issued by the Company and,
assuming due authentication thereof by the Trustee and upon payment
and delivery in accordance with this Agreement, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms and entitled to the benefits of the
Indenture;
(v) The Delayed Delivery Underwritten Securities, if
any, have been duly authorized and, when duly executed and issued by
the Company and, assuming due authentication thereof by the Trustee
and upon payment and delivery by the respective purchasers thereof in
accordance with the terms of the related Delayed Delivery Contracts,
will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms and entitled to the
benefits of the Indenture;
(vi) The Delayed Delivery Contracts, if any, have been
duly authorized, executed and delivered by the Company and, assuming
due authorization, execution and delivery by the purchasers
thereunder, are valid and legally binding obligations of the parties
thereto;
(vii) The statements made in each Prospectus under the
caption "Description of Securities" (or a comparable caption),
insofar as they purport to
<PAGE>
16
constitute summaries of the documents referred to therein, constitute
accurate summaries of the terms of such documents in all material
respects;
(viii) Each Registration Statement is effective under the
Act and, to the knowledge of such counsel, no stop order suspending
its effectiveness has been issued and no proceeding for that purpose
is pending or threatened by the Commission;
(ix) No order issued by the Commission directed to any
document incorporated by reference in any Prospectus has been issued
and, to the knowledge of such counsel, no challenge has been made by
the Commission to the accuracy or adequacy of any such document;
(x) Such counsel does not know of any litigation or any
governmental proceeding pending or threatened against the Company
which would affect the subject matter of this Agreement or is
required to be disclosed in any Prospectus (including the documents
incorporated by reference therein) which is not disclosed and
correctly summarized therein;
(xi) To the best of such counsel's knowledge, the Company
is not in violation of its corporate charter or by-laws, or in
default under any material agreement, indenture or instrument;
(xii) This Agreement has been duly authorized, executed
and delivered by the Company;
(xiii) The execution, delivery and performance of this
Agreement and the Delayed Delivery Contracts, if any, and compliance
by the Company with the provisions of the Underwritten Securities and
the Indenture will not constitute a breach of, or result in the
creation or imposition of any lien, charge or encumbrance upon any of
the assets of the Company pursuant to the terms of, or constitute a
default under, any agreement, indenture or instrument known to such
counsel, or result in a violation of the corporate charter or by-laws
of the Company or, to the best of such counsel's knowledge, any
order, rule or regulation of any court or governmental agency having
jurisdiction over the Company or its property;
(xiv) All legally required proceedings in connection with
the authorization, issue and validity of the Underwritten Securities
and the sale of the Underwritten Securities by the Company in
accordance with this Agreement have been taken, and all legally
required orders, consents or other authorizations or approvals of the
PUC and of any other public boards or bodies have been obtained and
all conditions precedent to the issue of the Underwritten Securities
in any such order, consent, authorization or approval have been
fulfilled, except such as may be required under state securities or
Blue Sky laws; and
<PAGE>
17
(xv) The Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the 1940 Act.
In giving such opinion, such counsel may rely on the opinion of New York
counsel satisfactory to counsel for the Underwriters as to matters of New York
law. In giving such opinion, such counsel need not express any opinion regarding
any order, consent or other authorization or approval which may be legally
required pursuant to any state securities law.
Such counsel may state that the opinions set forth in paragraphs (iii),
(iv), (v) and (vi) above are subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
Such opinion shall also state that the Registration Statements and each
Prospectus as of their respective effective and issue dates complied as to form
in all material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations of the Commission under said Acts
(except that no opinion need be expressed as to the financial statements and
other financial data contained herein) and each document incorporated by
reference in each Prospectus as filed under the Exchange Act complied when so
filed as to form in all material respects with the applicable requirements of
the Exchange Act and the rules and regulations of the Commission thereunder
(except that no opinion need be expressed as to the financial statements and
other financial data contained therein).
Such opinion shall also contain a statement that such counsel has no
reason to believe that (i) any Registration Statement, on the date it became
effective (or, with respect to such Registration Statement, if the Company has
filed an Annual Report on Form 10-K since its effective date, the date of the
Company's most recent Annual Report on Form 10-K), contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading, or
(ii) the Prospectus, as of its date and as of the Delivery Date, contains an
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(e) At the Delivery Date, there shall not have been, since the date
hereof or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company or the Company and its subsidiaries taken as a whole, whether or not
arising in the ordinary course of business, and the Representative shall have
received a certificate of the Chairman of the Board, the President, the Chief
Financial Officer or a Vice President of the Company, and the Treasurer or an
Assistant Treasurer of the Company, dated the Delivery Date, to the effect that
(i) there has been no such material adverse change, (ii) the representations and
warranties in Paragraph 1 hereof are true and correct with the same force and
effect as though expressly made at and as of the Delivery Date, (iii) the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the
<PAGE>
18
Delivery Date, and (iv) no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or are contemplated by the Commission.
(f) If Underwritten Securities in bearer form are being delivered by the
Company on the Delivery Date in a jurisdiction other than the United States, the
Company shall have furnished to the Representative such legal opinion or
opinions as the Representative may reasonably request addressed to the
Underwriters and dated the Delivery Date, with respect to matters relating to
the offering, sale and delivery of the Underwritten Securities in such
jurisdiction.
(g) The Company shall have furnished to the Representative (i) a letter
of PricewaterhouseCoopers, addressed to the Underwriters and dated the date
hereof of the type described in the American Institute of Certified Public
Accountants' Statement on Auditing Standards No. 72 and covering such specified
financial statement items as counsel for the Underwriters may reasonably have
requested and (ii) a letter of PricewaterhouseCoopers, addressed to the
Underwriters and dated the Delivery Date, stating, as of the date of such letter
(or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date of such
letter), the conclusions and findings of such firm with respect to the financial
information and other matters covered by its letter referred to in subclause (i)
above, confirming in all material respects the conclusions and findings set
forth in such prior letter.
(h) Simpson Thacher & Bartlett shall have furnished to the
Representative its opinion addressed to the Underwriters and dated the Delivery
Date, as counsel for the Underwriters, covering the matters set forth in
Paragraph 10(d), except clauses (ii), (viii), (ix), (x), (xi) and (xiii)
thereof.
(i) The PUC shall have granted authorization, and on the Delivery Date
such authorization shall be in full force and effect and non-appealable,
permitting the issuance and sale of the Underwritten Securities upon the terms
and conditions hereunder set forth or contemplated and containing no provision
unacceptable to the Underwriters, and all conditions precedent to the issuance
and sale of the Underwritten Securities contained therein shall have been
fulfilled.
(j) The Underwritten Securities shall have been accepted for listing on
the Stock Exchange (if any), subject to official notice of issuance.
(k) At the Delivery Date, the Underwritten Securities shall be rated at
least "Aa2" by Moody's Investor's Service Inc., "AA" by Standard & Poor's
Ratings Group, a division of McGraw-Hill, Inc., and "AA+" by Duff & Phelps
Credit Rating Co., and the Company shall have delivered to the Representative a
letter dated the Delivery Date, from each such rating agency, or other evidence
satisfactory to the Representative, confirming that the Underwritten Securities
have such ratings; and since the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to the Underwritten Securities or
any of the Company's other debt securities by any such rating agency, and no
such rating agency shall have publicly
<PAGE>
19
announced that it has withdrawn or has put under surveillance or review with
negative implications, including putting on what is commonly termed a "watch
list," its rating of the Underwritten Securities or any of the Company's other
debt securities.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to counsel
for the Underwriters.
11. If the Company shall fail to tender the Immediate Delivery
Underwritten Securities for delivery to the Underwriters for any reason
permitted under this Agreement, or if the Underwriters shall decline to purchase
the Immediate Delivery Underwritten Securities for any reason permitted under
this Agreement (other than pursuant to Paragraph 5 hereof). the Company shall
reimburse the Underwriters for reasonable fees and expenses of their counsel and
for such other out-of-pocket expenses as shall have been incurred by them in
connection with this Agreement and the proposed purchase of Immediate Delivery
Underwritten Securities and the solicitation of any purchases of the Delayed
Delivery Underwritten Securities, and upon demand the Company shall pay the full
amount thereof to the Representative. If this Agreement is terminated pursuant
to Paragraph 5 hereof by reason of the default of one or more Underwriters, the
Company shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
12. The Company shall be entitled to act and rely upon any request,
consent, notice or agreement by, or on behalf of, the Representative. Any notice
by the Company to the Underwriters shall be sufficient if given in writing or by
telegraph addressed to the Representative at its address set forth in Schedule I
hereto, and any notice by the Underwriters to the Company shall be sufficient if
given in writing or by telegraph addressed to the Company at 1095 Avenue of the
Americas, New York, New York 10036, Attention of the Treasurer.
13. This Agreement shall be binding upon the Underwriters, the Company,
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Act, and (b) the indemnity agreement of the Underwriters contained in
Paragraph 8 hereof shall be deemed to be for the benefit of directors of the
Company, officers of the Company who have signed any Registration Statement and
any person controlling the Company. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Paragraph, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
14. For purposes of this Agreement, (a) "business day" means any day on
which the New York Stock Exchange, Inc. is open for trading and (b) "subsidiary"
has the meaning set forth in Rule 405 of the Rules and Regulations.
<PAGE>
20
15. This Agreement shall be governed by and construed in accordance with
the laws of New York.
<PAGE>
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement shall represent a binding agreement among the Company and the
several Underwriters.
Very truly yours,
BELL ATLANTIC -- PENNSYLVANIA, INC.
By /s/ Neil D. Olson
-------------------------------
Name: Neil D. Olson
Title: Treasurer
The foregoing Agreement is hereby confirmed
and accepted as of the date first above
written.
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
By /s/ Francisco Rey
--------------------------------
Name: Francisco Rey
Title: Vice President
For itself and as Representative of the other Underwriters named in Schedule II
to the foregoing Agreement.
<PAGE>
SCHEDULE I
Underwriting Agreement dated December 2, 1998.
Registration Statement Nos. 33-50869 and 33-55252.
Representatives and Addresses: Merrill Lynch, Pierce, Fenner &
Smith Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Underwritten Securities
Designation: Thirty Year 6% Debentures due
December 1, 2028
Principal amount: $125,000,000
Indenture: Indenture, dated as of September 1, 1998,
between Bell Atlantic-Pennsylvania, Inc.
and The Chase Manhattan Bank, as successor
Trustee.
Date of Maturity: December 1, 2028
Interest Rate: 6% per annum, payable June 1 and
December 1 of each year, commencing
June 1, 1999, to holders of record at the
close of business on May 15 or November 15
prior to the payment date.
Purchase Price: 98.85% of the principal amount thereof.
Redemption Provisions: The Debentures are not redeemable prior to
maturity.
Authorized Denominations: $1,000 and integral multiples thereof.
Stock Exchange Listing: None.
Delivery Date, Time and Location: December 9, 1998 at 9:30 a.m., at the
offices of Simpson Thacher & Bartlett,
425 Lexington Avenue, New York, New York
10017.
<PAGE>
SCHEDULE II
Principal
Amount of
Underwritten
Securities
---------------------
Name of Underwriter
- -----------------------------------------------------
Merrill Lynch, Pierce, Fenner & Smith Incorporated.... $40,000,000
PaineWebber Incorporated.............................. $40,000,000
Prudential Securities Incorporated.................... $25,000,000
Chase Securities Inc. ............................... $10,000,000
Utendahl Capital Partners, L.P. ..................... $10,000,000
------------
Total $125,000,000
============
<PAGE>
EXHIBIT A
$
BELL ATLANTIC -- PENNSYLVANIA, INC.
DEBT SECURITIES
DELAYED DELIVERY CONTRACT
[DATE]
BELL ATLANTIC -- PENNSYLVANIA, INC.
1095 Avenue of Americas
New York, New York 10036
Dear Sirs:
The undersigned hereby agrees to purchase from Bell Atlantic --
Pennsylvania, Inc., a Pennsylvania corporation ("Company"), and the Company
hereby agrees to sell to the undersigned,
$
principal amount of the Company's above-captioned securities ("Securities"),
offered by the Company's prospectus dated , 199 , as supplemented by the
prospectus supplement dated , 199 (collectively, the "Prospectus"), receipt of a
copy of which is hereby acknowledged, at a purchase price of % of the principal
amount thereof plus accrued interest from , 199 to the Delivery Date (as defined
in the next paragraph) and on the further terms and conditions set forth in this
Contract.
Payment for and delivery of the Securities to be purchased by the
undersigned shall be made on , 199 , herein called the "Delivery Date".
At 10:00 A.M., New York time, on the Delivery Date, the Securities to be
purchased by the undersigned hereunder will be delivered by the Company to the
undersigned, and the undersigned will accept delivery of such Securities and
will make payment to the Company of the purchase price therefor, at the office
of . Payment will be certified or official bank check payable in next-day funds
settled through the New York Clearing House to or upon the order of the Company.
This Contract will terminate and be of no further force and effect after
, 199 , unless (i) on or before such date it shall have been executed and
delivered by both parties hereto or (ii) the Company shall have sold to the
Underwriters named in the Prospectus the Immediate Delivery Underwritten
Securities (as defined in the Underwriting Agreement referred to in the
Prospectus) and the Company shall have mailed or delivered to the undersigned at
its address set forth below a notice to that effect, stating the date of the
occurrence thereof, accompanied by
<PAGE>
1
copies of the opinion of counsel for the Company delivered to such Underwriters
pursuant to Paragraph 10(d) of the Underwriting Agreement.
The obligation of the undersigned to accept delivery and make payment
for the Securities on the Delivery Date will be subject to the condition that
the Securities shall not, on the Delivery Date, be an investment prohibited by
the laws of the jurisdiction to which the undersigned is subject, the
undersigned hereby representing that such an investment is not so prohibited on
the date hereof. This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of any Delayed Delivery Contract (as
defined in said Underwriting Agreement) is in the Company's sole discretion and,
without limiting the foregoing, need not be on a first-come, first-served basis.
If this Contract is acceptable to the Company, it is requested that the Company
sign the form of acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This will become a
binding contract between the Company and the undersigned when such counterpart
is so mailed or delivered.
Very truly yours,
By _________________________
____________________________
Title
____________________________
Address
Accepted as of , .
BELL ATLANTIC -- PENNSYLVANIA, INC.
By ____________________________
Title
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BELL ATLANTIC-PENNSYLVANIA, INC.
and
THE CHASE MANHATTAN BANK,
Trustee
---------------
Indenture
Dated as of September 1, 1998
---------------
Providing for Issuance of
Securities in Series
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<PAGE>
Reconciliation and tie between Indenture dated as of September 1, 1998 and the
Trust Indenture Act of 1939, as amended. This reconciliation section does not
constitute part of the Indenture.
<TABLE>
<CAPTION>
Trust Indenture Act Indenture
of 1939, as amended, Section Section
<S> <C>
310(a)(1) ..................... 7.10
(a)(2) ...................... 7.10
(a)(3) ...................... Inapplicable
(a)(4) ...................... Inapplicable
(a)(5) ...................... 7.10
(b) ......................... 7.08;7.10
(c) ......................... Inapplicable
311(a) ........................ 7.11
(b) ......................... 7.11
(c) ......................... Inapplicable
312(a) ........................ 2.07
(b) ......................... 10.03
(c) ......................... 10.03
313(a) ........................ 7.06
(b)(1) ...................... Inapplicable
(b)(2) ...................... 7.06
(c) ......................... 7.06; 10.02
(d) ......................... 7.06
314(a) ........................ 4.03; 10.02
(b) ......................... Inapplicable
(c)(1) ...................... 10.04
(c)(2) ...................... 10.04
(c)(3) ...................... Inapplicable
(d) ......................... Inapplicable
(e) ......................... 10.05
(f) ......................... Inapplicable
315(a) ........................ 7.01(b)
(b) ......................... 7.05; 10.02
(c) ......................... 7.01(a)
(d) ......................... 7.01(c)
(e) ......................... 6.11
316(a)(last sentence) ......... 2.11
(a)(1)(A) ................... 6.05
(a)(1)(B) ................... 6.04
(a)(2) ...................... Inapplicable
(b) ......................... 6.07
317(a)(1) ..................... 6.08
(a)(2) ...................... 6.09
(b) ......................... 2.06
318(a) ........................ 10.01
</TABLE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE ............................ 1
1.01 Definitions ...................................................... 1
1.02 Other Definitions ................................................ 2
1.03 Incorporation by Reference of Trust Indenture Act ................ 2
1.04 Rules of Construction ............................................ 3
ARTICLE 2 THE SECURITIES ........................................................ 3
2.01 Issuable in Series ............................................... 3
2.02 Establishment of Terms and Form of Series of Securities .......... 3
2.03 Execution, Authentication and Delivery ........................... 4
2.04 Registrar and Paying Agent ....................................... 5
2.05 Payment on Securities ............................................ 6
2.06 Paying Agent to Hold Money in Trust .............................. 6
2.07 Securityholder Lists; Ownership of Securities .................... 6
2.08 Transfer and Exchange ............................................ 7
2.09 Replacement Securities ........................................... 7
2.10 Outstanding Securities ........................................... 8
2.11 Treasury Securities .............................................. 8
2.12 Temporary Securities ............................................. 8
2.13 Cancellation ..................................................... 9
2.14 Defaulted Interest ............................................... 9
ARTICLE 3 REDEMPTION ............................................................ 9
3.01 Notice to Trustee ................................................ 9
3.02 Selection of Securities to be Redeemed ........................... 9
3.03 Notice of Redemption ............................................. 10
3.04 Effect of Notice of Redemption; Payment upon Surrender ........... 10
3.05 Deposit of Redemption Price ...................................... 10
3.06 Securities Redeemed in Part ...................................... 10
3.07 Redemption at the Option of Holders .............................. 10
ARTICLE 4 COVENANTS ............................................................. 11
4.01 Payment of Securities ............................................ 11
4.02 Lien on Assets ................................................... 11
4.03 Reports by the Company ........................................... 11
ARTICLE 5 SUCCESSOR CORPORATION ................................................. 12
5.01 When Company May Merge, etc. ..................................... 12
ARTICLE 6 DEFAULTS AND REMEDIES ................................................. 12
6.01 Events of Default ................................................ 12
6.02 Acceleration ..................................................... 13
6.03 Other Remedies Available to Trustee .............................. 13
6.04 Waiver of Existing Defaults ...................................... 13
6.05 Control by Majority .............................................. 13
6.06 Limitation on Suits by Securityholders ........................... 13
6.07 Rights of Holders to Receive Payment ............................. 14
6.08 Collection Suits by Trustee ...................................... 14
6.09 Trustee May File Proofs of Claim ................................. 14
6.10 Priorities ....................................................... 14
6.11 Undertaking for Costs ............................................ 14
ARTICLE 7 TRUSTEE ............................................................... 15
7.01 Duties of Trustee ................................................ 15
7.02 Rights of Trustee ................................................ 15
7.03 Individual Rights of Trustee ..................................... 15
7.04 Trustee's Disclaimer ............................................. 16
</TABLE>
i
<PAGE>
<TABLE>
<S> <C> <C>
7.05 Notice of Defaults ................................................ 16
7.06 Reports by Trustee to Holders ..................................... 16
7.07 Compensation and Indemnity ........................................ 16
7.08 Replacement of Trustee ............................................ 16
7.09 Successor Trustee, Agents by Merger, etc. ......................... 17
7.10 Eligibility; Disqualification ..................................... 17
7.11 Preferential Collection of Claims Against Company ................. 18
ARTICLE 8 DISCHARGE OF INDENTURE ................................................. 18
8.01 Termination of Company's Obligations .............................. 18
8.02 Application of Trust Money ........................................ 18
8.03 Excess or Unclaimed Money ......................................... 18
8.04 Indemnity for Government Obligations .............................. 19
ARTICLE 9 AMENDMENTS AND WAIVERS ................................................. 19
9.01 Without Consent of Holders ........................................ 19
9.02 With Consent of Holders ........................................... 19
9.03 Compliance with Trust Indenture Act ............................... 20
9.04 Revocation and Effect of Consents ................................. 20
9.05 Notation on or Exchange of Securities ............................. 20
9.06 Trustee Protected ................................................. 20
9.07 Execution of Supplemental Indentures .............................. 20
ARTICLE 10 MISCELLANEOUS .......................................................... 20
10.01 Trust Indenture Act Controls ..................................... 20
10.02 Notices .......................................................... 20
10.03 Communication by Holders with Other Holders ...................... 21
10.04 Certificate and Opinion as to Conditions Precedent ............... 21
10.05 Statements Required in Certificate or Opinion .................... 21
10.06 Rules by Trustee and Agents ...................................... 22
10.07 Legal Holidays ................................................... 22
10.08 Governing Law .................................................... 22
10.09 No Adverse Interpretation of Other Agreements .................... 22
10.10 No Recourse Against Others ....................................... 22
10.11 Execution in Counterparts ........................................ 23
SIGNATURES .......................................................................... 23
</TABLE>
ii
<PAGE>
INDENTURE, dated as of September 1, 1998, between BELL ATLANTIC-
PENNSYLVANIA, INC., a Pennsylvania corporation ("Company"), and THE CHASE
MANHATTAN BANK, a corporation duly organized and existing under the laws of the
State of New York ("Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes or other evidences of indebtedness ("Securities") as herein provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, and intending to be legally bound hereby, it
is mutually covenanted and agreed as follows for the equal and ratable benefit
of the Holders of the Securities:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Affiliate" means any person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, the Company.
"Agent" means any Paying Agent or Registrar.
"Authorized Newspaper" means a newspaper of general circulation, in the
official language of the country of publication or in the English language,
customarily published on each business day. Whenever successive weekly
publications in an Authorized Newspaper are required hereunder they may be made
(unless otherwise expressly provided herein) on the same or different days of
the week and in the same or different Authorized Newspapers.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board of Directors,
certified by the Secretary or an Assistant Secretary of the Company to have
been adopted by the Board of Directors and to be in full force and effect on
the date of the certificate, and delivered to the Trustee.
"Company" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor.
"Company Order" means an order signed by two Officers or by any Officer
and an Assistant Treasurer or an Assistant Secretary of the Company.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Holder" or "Securityholder" means a bearer of an Unregistered Security or
of a coupon appertaining thereto or a person in whose name a Registered
Security is registered on the Registrar's books.
"Indenture" means this Indenture as amended or supplemented from time to
time and shall include the forms and terms of particular Series of Securities
established as contemplated hereunder.
"Officer" means the President, any Vice-President, the Treasurer, the
Secretary or the Controller of the Company and the Chairman or a Vice-Chairman
of the Board of Directors, if any.
"Officers' Certificate" means a certificate signed by two Officers or by
any Officer and an Assistant Treasurer or an Assistant Secretary of the
Company.
"Opinion of Counsel" means a written opinion of legal counsel who is
acceptable to the Company and the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
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<PAGE>
"Original Issue Discount Security" means any Security which provides for
an amount less than the stated principal amount thereof to be due and payable
upon declaration of acceleration of the maturity thereof pursuant to Section
6.02.
"principal" of a Security means the principal of the Security plus, when
appropriate, the premium, if any, on the Security.
"Registered Security" means any Security issued hereunder and registered
as to principal and interest by the Registrar.
"Responsible Officer", when used with respect to the Trustee, shall mean
the chairman or any vice-chairman of the board of directors or trustees, the
chairman or any vice-chairman of the executive committee of the board of
directors or trustees, the president, any vice-president, the treasurer, the
secretary, any trust officer, any second or assistant vicepresident or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with a particular subject.
"SEC" means the Securities and Exchange Commission.
"Series" or "Series of Securities" means a series of Securities.
"Securities" means the debentures, notes or other obligations of the
Company issued, authenticated and delivered under this Indenture.
"TIA" means the Trust Indenture Act of 1939, as amended from time to time
(15 U.S.C. [sec][sec] 77aaa-77bbbb) and references to Sections of the TIA
herein shall include successor Sections, if applicable.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor and if, at any time,
there is more than one Trustee, "Trustee" as used with respect to the
Securities of any Series shall mean the Trustee with respect to that Series.
"U.S. person" means a citizen, national or resident of the United States,
a corporation, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
"Unregistered Security" means any Security issued hereunder which is not a
Registered Security.
"Yield to Maturity" means the yield to maturity, calculated by the Company
at the time of issuance of a Series of Securities or, if applicable, at the
most recent determination of interest on such Series in accordance with
accepted financial practice.
SECTION 1.02. Other Definitions.
<TABLE>
<CAPTION>
Term Section
---- -------
<S> <C>
"Bankruptcy Law" ...................... 6.01
"Custodian" ........................... 6.01
"Event of Default" .................... 6.01
"Legal Holiday" ....................... 0.07
"Paying Agent" ........................ 2.04
"Registrar" ........................... 2.04
"U.S. Government Obligations" ......... 8.01
</TABLE>
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
2
<PAGE>
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the
TIA have the meanings assigned to them therein.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles;
(3) "or" is not exclusive; and
(4) words in the singular include the plural, and words in the plural
include the singular.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued
in one or more Series.
There may be Registered Securities and Unregistered Securities within a
Series and the Unregistered Securities may be subject to such restrictions, and
contain such legends, as may be required by United States laws and regulations.
All Securities within a Series shall be substantially identical except as may
otherwise be provided in or pursuant to a Board Resolution or indenture
supplemental hereto. Subject to the immediately preceding sentence, Securities
may differ in any respect; provided that all Securities shall be equally and
ratably entitled to the benefits of this Indenture.
SECTION 2.02. Establishment of Terms and Form of Series of Securities.
(a) At or prior to the issuance of any Series of Securities, the following
shall be established either by or pursuant to a Board Resolution or by an
indenture supplemental hereto:
(1) the title of the Securities of the Series (which title shall
distinguish the Securities of the Series from the Securities of any other
Series and from any other securities issued by the Company);
(2) any limit upon the aggregate principal amount of the Securities of
the Series which may be authenticated and delivered under this Indenture
(which limit shall not pertain to Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the Series pursuant to Sections 2.08, 2.09, 2.12, 3.06 or
9.05);
(3) the date or dates on which the principal of the Securities of the
Series is payable;
(4) the rate or rates at which the Securities of the Series shall bear
interest, if any, or the method of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue, the
dates on which such interest shall be payable and, with respect to
Registered Securities, the record date for the interest payable on any
interest payment date;
(5) the place or places where the principal of and interest on
Registered and Unregistered, if any, Securities of the Series shall be
payable;
(6) the period or periods within which, the price or prices at which,
and the terms and conditions upon which, Securities of the Series may be
redeemed, in whole or in part, at the option of the Company;
3
<PAGE>
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the Series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option of a
Holder thereof and the period or periods within which, the price or prices
at which, and the terms and conditions upon which, Securities of the Series
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(8) if in other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the Series shall be
issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the Series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
6.02;
(10) whether Securities of the Series shall be issuable as Registered
Securities or Unregistered Securities (with or without interest coupons),
or both, and any restrictions applicable to the offering, sale or delivery
of Unregistered Securities and whether, and the terms upon which,
Unregistered Securities of a Series may be exchanged for Registered
Securities of the same Series and vice versa;
(11) whether and under what circumstances the Company will pay
additional amounts on the Securities of that Series held by a person who is
not a U.S. person in respect of taxes or similar charges withheld or
deducted and, if so, whether the Company will have the option to redeem
such Securities rather than pay such additional amounts;
(12) the currency or currencies, which may be a composite currency
such as the European Currency Unit, of payment of principal of and premium,
if any, and interest on the Debt Securities, if other than U.S. dollars;
(13) any other terms of the Series (which terms shall not be
inconsistent with the provisions of this Indenture) including any terms
which may be required by or advisable under United States laws or
regulations or advisable in connection with the marketing of Securities of
that Series;
(14) the form of the Securities (or forms thereof if Unregistered and
Registered Securities shall be issuable in such Series, including such
legends as may be required by United States laws or regulations, the form
of any coupons or temporary global Security which may be issued and the
forms of any certificates which may be required hereunder or under United
States laws or regulations in connection with the offering, sale, delivery
or exchange of Unregistered Securities); and
(15) the extent to which any Securities will be issuable in temporary
or permanent global form, and the manner in which any payments on a
temporary or permanent global Security will be made.
(b) If the terms and form or forms of any Series of Securities are
established by or pursuant to a Board Resolution, the Company shall deliver a
copy of such Board Resolution to the Trustee at or prior to the issuance of
such Series with (1) the form or forms of Security which have been approved
attached thereto, or (2) if such Board Resolution authorizes a specific Officer
or Officers to approve the terms and form or forms of the Securities, a
certificate of such Officer or Officers approving the terms and form or forms
of Security with such form or forms of Securities attached thereto.
SECTION 2.03. Execution, Authentication and Delivery.
(a) Securities shall be executed on behalf of the Company by its Chairman
of the Board of Directors or a Vice-Chairman of the Board of Directors, if any,
or the President or a Vice-President, and by its Treasurer or an Assistant
Treasurer or its Secretary or an Assistant Secretary. Signatures shall be
manual or facsimile. The Company's seal shall be reproduced on the Securities
and may, but need not, be attested. The coupons of Unregistered Securities
shall bear the facsimile signature of the Treasurer or an Assistant Treasurer
of the Company.
(b) If an Officer, an Assistant Treasurer or an Assistant Secretary whose
signature is on a Security or coupon no longer holds that office at the time
the Security is authenticated, the Security or coupon shall be valid
nevertheless.
(c) A Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent and no coupon shall be
valid until the Security to which it appertains has been so authenticated. Such
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture. Each Unregistered Security shall be dated the date of its
original issuance and each Registered Security shall be dated the date of its
authentication.
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<PAGE>
(d) The Trustee shall at any time, and from time to time, authenticate and
deliver Securities of any Series executed and delivered by the Company for
original issue upon receipt by the Trustee of (i) a Company Order for the
authentication and delivery of such Securities, (ii) if the terms and form or
forms of the Securities of such Series have been established by or pursuant to
a Board Resolution as permitted by Section 2.02, a copy of such Board
Resolution and any certificate that may be required pursuant to Section 2.02(b)
and (iii) an Opinion of Counsel stating:
(1) if the form of such Securities has been established by or pursuant
to a Board Resolution as permitted by Section 2.02, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to a Board Resolution as permitted by Section 2.02, that such
terms have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
If the terms and form or forms of such Securities have been established by
or pursuant to a Board Resolution as permitted by Section 2.02, the Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will materially and adversely affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Notwithstanding the foregoing, (i) delivery of Unregistered Securities
will be made only outside the United States and its possessions and (ii)
Unregistered Securities will be released in definitive form to the person
entitled to physical delivery thereof only upon presentation of a certificate
in the form prescribed by the Company, until such time as the Company has
notified the Trustee and the Registrar that upon delivery of Unregistered
Securities under any other circumstances, the Company would not suffer adverse
consequences under the provisions of United States law or regulations in effect
at the time of the delivery of Unregistered Securities.
(e) The aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal amount for such
Series set forth in the Board Resolution (or certificate of an Officer or
Officers) or supplemental indenture pursuant to Section 2.02.
(f) The Trustee may appoint an authenticating agent to authenticate
Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate.
SECTION 2.04. Registrar and Paying Agent.
The Company shall maintain in the United States an office or agency where
Registered Securities may be presented for registration of transfer or for
exchange ("Registrar") and an office or agency where (subject to Sections 2.05
and 2.08) Securities may be presented for payment or, in the case of
Unregistered Securities, for exchange ("Paying Agent"). With respect to any
Series of Securities issued in whole or in part as Unregistered Securities, the
Company shall maintain one or more Paying Agents located outside the United
States and its possessions and shall maintain such Paying Agents for a period
of two years after the principal of such Unregistered Securities has become due
and payable. During any period thereafter for which it is necessary in order to
conform to United States tax law or regulations, the Company will maintain a
Paying Agent outside the United States and its possessions to which the
Unregistered Securities or coupons appertaining thereto may be presented for
payment and will provide the necessary funds therefor to such Paying Agent upon
reasonable notice. The Registrar shall keep a register with respect to each
Series of Securities issued in whole or in part as Registered Securities and
with respect to their transfer and exchange. The Company may appoint one or
more co-Registrars and one or more additional Paying Agents for each Series of
Securities and the Company may terminate the appointment of any co-Registrar or
Paying Agent at any time upon written notice. The term "Registrar" includes any
co-Registrar. The term "Paying Agent" includes any additional Paying Agent. The
Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture. If the Company fails to maintain a Registrar or Paying
Agent, the Trustee shall act as such.
The Company initially appoints First Union National Bank as Registrar and
Paying Agent.
5
<PAGE>
SECTION 2.05. Payment on Securities.
(a) Subject to the following provisions, the Company will pay to the
Trustee the amounts, in such coin or currency as is at the time legal tender
for the payment of public or private debt, at the times and for the purposes
set forth herein and in the text of the Securities for each Series, and the
Company hereby authorizes and directs the Trustee from funds so paid to it to
make or cause to be made payment of the principal of and interest, if any, on
the Securities and coupons of each Series as set forth herein and in the text
of such Securities and coupons. The Trustee will arrange directly with any
Paying Agents for the payment, or the Trustee will make payment, from funds
furnished by the Company, of the principal of and interest, if any, on the
Securities and coupons of each Series by check.
(b) Interest, if any, on Registered Securities of a Series shall be paid
on each interest payment date for such Series to the Holder thereof at the
close of business on the relevant record dates specified in the Securities of
such Series. Interest may be payable by check mailed to such Holder's address
as it appears on the register for Securities of such Series. Principal of
Registered Securities shall be payable only against presentation and surrender
thereof at the office of the Paying Agent, unless the Company shall have
otherwise instructed the Trustee by Company Order.
(c) To the extent provided in the Securities of a Series, (i) interest, if
any, on Unregistered Securities shall be paid only against presentation and
surrender of the coupons for such interest installments as are evidenced
thereby as they mature and (ii) original issue discount (as defined in Section
1273 of the Internal Revenue Code of 1986, as amended), if any, on Unregistered
Securities shall be paid only against presentation and surrender of such
Securities; in either case at the office of a Paying Agent located outside of
the United States and its possessions, unless the Company shall have otherwise
instructed the Trustee by Company Order. Principal of Unregistered Securities
shall be paid only against presentation and surrender thereof as provided in
the Securities of a Series. If at the time a payment of principal of or
interest, if any, or original issue discount, if any, on an Unregistered
Security or coupon shall become due, the payment of the full amount so payable
at the office or offices of all the Paying Agents outside the United States and
its possessions is illegal or effectively precluded because of the imposition
of exchange controls or other similar restrictions on the payment of such
amount in United States currency, then the Company may instruct the Trustee to
make such payments at the office of a Paying Agent located in the United
States, provided that provision for such payment in the United States would not
cause such Unregistered Security to be treated as a "registration-required
obligation" under United States law and regulations.
SECTION 2.06. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust, for the benefit of
Securityholders of any Series of Securities, or the Trustee, all money held by
the Paying Agent for the payment of principal or interest on such Series of
Securities, and that the Paying Agent will notify the Trustee of any default by
the Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
If the Company or a subsidiary acts as Paying Agent, it shall segregate the
money held by it for the payment of principal or interest on any Series of
Securities and hold such money as a separate trust fund. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee.
Upon so doing the Paying Agent shall have no further liability for the money so
paid.
SECTION 2.07. Securityholder Lists; Ownership of Securities.
(a) The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders of each Series of Securities. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee as of (and not later than ten days after)
the record date for payment of interest on each Series of Securities (but in
any event not less than semiannually), and at such other times as the Trustee
may request in writing, a list, in such form and as of such date as the Trustee
may reasonably require, containing all the information in the possession or
control of the Registrar, the Company or any of its Paying Agents other than
the Trustee as to the names and addresses of Holders of each such Series of
Securities. If there are Unregistered Securities of any Series outstanding,
even if the Trustee is the Registrar, the Company shall furnish to the Trustee
such a list containing such information with respect to Holders of such
Unregistered Securities only.
(b) Ownership of Registered Securities of a Series shall be proved by the
register for such Series kept by the Registrar. Ownership of Unregistered
Securities may be proved by the production of such Unregistered Securities or
by a certificate or affidavit executed by the person holding such Unregistered
Securities or by a depository with
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whom such Unregistered Securities were deposited, if the certificate or
affidavit is satisfactory to the Company. The Company, the Trustee and any
agent of the Company may treat the bearer of any Unregistered Security or
coupon and the person in whose name a Registered Security is registered as the
absolute owner thereof for all purposes.
SECTION 2.08. Transfer and Exchange.
(a) Where Registered Securities of a Series are presented to the Registrar
with a request to register their transfer or to exchange them for an equal
principal amount of Registered Securities of the same Series and date of
maturity of other authorized denominations, the Registrar shall register the
transfer or make the exchange if its requirements for such transactions are
met. The registration of transfer or exchange shall be effective only by the
surrender of the Registered Securities and the issuance by the Company and
authentication by the Trustee of replacement Registered Securities.
(b) If both Registered and Unregistered Securities are authorized for a
Series of Securities and the terms of such Securities permit, (i) Unregistered
Securities may be exchanged for an equal principal amount of Registered or
Unregistered Securities of the same Series and date of maturity in any
authorized denominations upon delivery to the Registrar (or a Paying Agent, if
the exchange is for Unregistered Securities) of the Unregistered Security with
all unmatured coupons and all matured coupons in default appertaining thereto
and if all other requirements of the Registrar (or such Paying Agent) and such
Securities for such exchange are met, and (ii) Registered Securities may be
exchanged for an equal principal amount of Unregistered Securities of the same
Series and date of maturity in any authorized denominations (except that any
coupons appertaining to such Unregistered Securities which have matured and
have been paid shall be detached) upon delivery to the Registrar of the
Registered Securities and if all other requirements of the Registrar (or the
Paying Agent to which the Registrar forwards such Unregistered Securities) and
such Securities for such exchange are met.
Notwithstanding the foregoing, the exchange of Unregistered Securities for
Registered Securities or Registered Securities for Unregistered Securities will
be subject to the satisfaction of the provisions of United States law and
regulations in effect at the time of such exchange, and no exchange of
Registered Securities for Unregistered Securities will be made until the
Company has notified the Trustee and the Registrar that, as a result of such
exchange, the Company would not suffer adverse consequences under such law or
regulations.
(c) To permit registrations of transfers and exchanges, the Trustee shall
authenticate Securities upon surrender of Securities for registration of
transfer or for exchange as provided in this Section. The Company will not make
any charge for any registration of transfer or exchange but may require the
payment by the party requesting such registration of transfer or exchange of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
(d) Neither the Company nor the Registrar shall be required (i) to issue,
register the transfer of or exchange Securities of any Series for the period of
15 days immediately preceding the selection of any such Securities to be
redeemed, (ii) to register the transfer of or exchange Securities of any Series
selected, called or being called for redemption as a whole or the portion being
redeemed of any such Securities selected, called or being called for redemption
in part, or (iii) to register the transfer of or exchange Securities of any
Series as to which the Holder has exercised an option to require redemption of
such Security prior to the stated maturity date thereof.
(e) Unregistered Securities or any coupons appertaining thereto shall be
transferable by delivery.
SECTION 2.09. Replacement Securities.
(a) If a mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall issue and
the Trustee shall authenticate a replacement Registered Security, if such
surrendered security was a Registered Security, or a replacement Unregistered
Security with coupons corresponding to the coupons appertaining to the
surrendered Security, if such surrendered Security was an Unregistered
Security, of the same Series and date of maturity, if the Trustee's
requirements are met.
(b) If the Holder of a Security claims that the Security or any coupon
appertaining thereto has been lost, destroyed or wrongfully taken, the Company
shall execute and the Trustee shall authenticate a replacement Registered
Security, if such Holder's claim pertains to a Registered Security, or a
replacement Unregistered Security with coupons corresponding to the coupons
appertaining to the lost, destroyed or wrongfully taken Unregistered Security
or the Unregistered Security to which such lost, destroyed or wrongfully taken
coupon appertains, if such Holder's claim
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pertains to an Unregistered Security, of the same Series and date of maturity,
if the Trustee's requirements are met; provided, however, that the Trustee or
the Company may require any such Holder to provide to the Trustee or the
Company security or indemnity sufficient in the judgment of the Company and the
Trustee to protect the Company, the Trustee, any Agent or any authenticating
agent from any loss which any of them may suffer if a Security is replaced. The
Company may charge the party requesting a replacement Security for its
expenses, and any associated taxes, in replacing a Security.
(c) Every replacement Security is an additional obligation of the Company.
(d) The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 2.10. Outstanding Securities.
(a) Securities outstanding at any time are all Securities authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation, and those described in this Section as not outstanding.
(b) If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
(c) If the Paying Agent holds on a redemption date or maturity date money
sufficient to pay all amounts due on that date on Securities of any Series,
then on and after that date all Securities of such Series that mature or that
are to be redeemed on such date cease to be outstanding and interest on them
ceases to accrue.
(d) A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
(e) In determining whether the Holders of the requisite principal amount
of outstanding Securities of any Series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, the
principal amount of an Original Issue Discount Security that shall be deemed to
be outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 6.02.
SECTION 2.11. Treasury Securities.
In determining whether the Holders of the requisite principal amount of
Securities of any Series have concurred in any direction, waiver or consent,
Securities of such Series owned by the Company or an Affiliate shall be
disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities of such Series which the Trustee knows are so owned shall be so
disregarded. Securities of such Series owned by the Company which have been
pledged in good faith may be considered by the Trustee if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right to so act
with respect to such Securities and that the pledgee is not the Company or an
Affiliate.
SECTION 2.12. Temporary Securities.
(a) Until definitive Registered Securities of any Series are ready for
delivery, the Company may prepare and execute and the Trustee shall
authenticate temporary Registered Securities of such Series. Temporary
Registered Securities of any Series shall be substantially in the form of
definitive Registered Securities of such Series but may have variations that
the Company considers appropriate for temporary Securities. Every temporary
Registered Security shall be executed by the Company and authenticated by the
Trustee, and registered by the Registrar, upon the same conditions, and with
like effect, as a definitive Registered Security. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate definitive
Registered Securities of the same Series and date of maturity in exchange for
temporary Registered Securities.
(b) Until definitive Unregistered Securities of any Series are ready for
delivery, the Company may prepare and execute and the Trustee shall
authenticate one or more temporary Unregistered Securities, which may have
coupons attached or which may be in the form of a single temporary global
Unregistered Security of that Series. The temporary Unregistered Security or
Securities of any Series shall be substantially in the form approved by or
pursuant to a Board Resolution and shall be delivered to one of the Paying
Agents located outside the United States and its possessions or to such other
person or persons as the Company shall direct against such certification as the
Company may from
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time to time prescribe by or pursuant to a Board Resolution. The temporary
Unregistered Security or Securities of a Series shall be executed by the
Company and authenticated by the Trustee upon the same conditions, and with
like effect, as a definitive Unregistered Security of such Series, except as
provided herein or therein. A temporary Unregistered Security or Securities
shall be exchangeable for definitive Unregistered Securities at the time and on
the conditions, if any, specified in the temporary Security.
Upon any exchange of a part of a temporary Unregistered Security of a
Series for definitive Unregistered Securities of such Series, the temporary
Unregistered Security shall be endorsed by the Trustee or Paying Agent to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of definitive Unregistered Securities of such Series
so exchanged and endorsed.
SECTION 2.13. Cancellation.
The Company at any time may deliver Securities and coupons to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities and coupons surrendered to them for registration of
transfer or for exchange or payment. The Trustee shall cancel all Securities
and coupons surrendered for registration of transfer, or for exchange, payment
or cancellation and may dispose of cancelled Securities and coupons as the
Company directs; provided, however, that any Unregistered Securities of a
Series delivered to the Trustee for exchange prior to maturity shall be
retained by the Trustee for reissue as provided herein or in the Securities of
such Series. The Company may not issue new Securities to replace Securities
that it has paid or delivered to the Trustee for cancellation.
SECTION 2.14. Defaulted Interest.
If the Company defaults on a payment of interest on a Series of
Securities, it shall pay the defaulted interest as provided in such Securities
or in any lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed and acceptable to
the Trustee. With respect to Registered Securities, the Trustee may pay the
defaulted interest, plus any interest payable on the defaulted interest, to the
Holders of such Registered Securities on a subsequent special record date. The
Company shall fix such special record date and the payment date. At least 15
days before such special record date, the Company shall mail to such Holders a
notice that states the record date, the payment date and the amount of interest
to be paid, and on or before the payment date the Company shall deposit such
amount with the Trustee.
ARTICLE 3
REDEMPTION
SECTION 3.01. Notice to Trustee.
The Company may, with respect to any Series of Securities, reserve the
right to redeem and pay the Series of Securities or any part thereof, or may
covenant to redeem and pay the Series of Securities or any part thereof, before
maturity at such time and on such terms as provided for in such Securities. If
a Series of Securities is redeemable and the Company wants or is obligated to
redeem all or part of the Series of Securities pursuant to the terms of such
Securities, it shall notify the Trustee of the redemption date and the
principal amount of the Series of Securities to be redeemed. The Company shall
give such notice at least 60 days before the redemption date (or such shorter
notice as may be acceptable to the Trustee).
SECTION 3.02. Selection of Securities to be Redeemed.
If less than all the Securities of a Series are to be redeemed, the
Trustee, not more than 60 days prior to the redemption date, shall select the
Securities of the Series to be redeemed by a method that complies with the
requirements of any stock exchange on which the Securities of the Series are
listed and that the Trustee shall deem fair and appropriate or, if the
Securities are not listed on any stock exchange, then such Securities shall be
redeemed on a pro rata basis or by lot, as the Trustee may elect. The Trustee
shall make the selection from Securities of the Series that are outstanding and
that have not previously been called for redemption. Securities of the Series
and portions of them selected by the Trustee shall be in amounts of $1,000 or
integral multiples of $1,000 or, with respect to Securities of any Series
issuable in other denominations pursuant to Section 2.02(a)(8), in amounts
equal to the minimum principal denomination for each such Series and integral
multiples thereof. Provisions of this Indenture
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that apply to Securities of a Series called for redemption also apply to
portions of Securities of that Series called for redemption. The Trustee shall
promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
SECTION 3.03. Notice of Redemption.
(a) At least 15 days but not more than 60 days before a redemption date,
the Company shall mail a notice of redemption by first-class mail to each
Holder of Registered Securities that are to be redeemed.
(b) If Unregistered Securities are to be redeemed, notice of redemption
shall be published in an Authorized Newspaper in each of The City of New York,
London and, if such Securities to be redeemed are listed on the Luxembourg
Stock Exchange, Luxembourg once in each of four successive calendar weeks, the
first publication to be not less than 15 nor more than 60 days before the
redemption date.
(c) All notices shall identify the Series of Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) if less than all the outstanding Securities of a Series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed;
(4) the name and address of the Paying Agent;
(5) that Securities of the Series called for redemption and all
unmatured coupons, if any, appertaining thereto must be surrendered to the
Paying Agent to collect the redemption price; and
(6) that interest on Securities of the Series called for redemption
will cease to accrue on and after the redemption date.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense.
SECTION 3.04. Effect of Notice of Redemption; Payment upon Surrender.
Once notice of redemption is mailed or published, Securities of a Series
called for redemption become due and payable on the redemption date. Upon
surrender to the Paying Agent of Securities to be redeemed together with all
unmatured coupons, if any, appertaining thereto, such Securities shall be paid
at the redemption price plus accrued interest to the redemption date, but
installments of interest due on or prior to the redemption date will be
payable, in the case of Unregistered Securities, to the bearers of the coupons
for such interest upon surrender thereof, and, in the case of Registered
Securities, to the Holders of such Securities of record at the close of
business on the relevant record dates.
SECTION 3.05. Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit with the
Trustee money sufficient to pay the redemption price of and (unless the
redemption date shall be an interest payment date) interest accrued to the
redemption date on all Securities to be redeemed on that date. Such money shall
be held in trust by the Trustee for the Holders of such Securities.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder of that Security a new
Security or Securities of the same Series, the same form and the same maturity
in authorized denominations equal in aggregate principal amount to the
unredeemed portion of the Security surrendered.
SECTION 3.07. Redemption at the Option of Holders.
Securities of any Series which are redeemable at the option of the Holders
thereof before the stated maturity date or dates of such Securities shall be
redeemed in accordance with the terms of the Series of the Securities, as set
forth in such Securities or as established by or pursuant to the Board
Resolution or supplemental indenture relating
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to such Series. Sections 3.01 (second and third sentences), 3.02, 3.03 and 3.04
(first sentence) shall not apply to any redemption of a Security to be made at
the option of the Holder.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on the Securities on
the dates and in the manner provided herein and in the Securities. An
installment of principal or interest shall be considered paid on the date it is
due if the Trustee or Paying Agent holds on that date money designated for and
sufficient to pay the installment.
The Company shall pay interest on overdue principal of a Security of any
Series at the rate of interest (or Yield to Maturity in the case of Original
Issue Discount Securities) borne by such Security; to the extent lawful, it
shall pay interest on overdue installments of interest at the same rate.
SECTION 4.02. Lien on Assets.
If at any time the Company mortgages, pledges or otherwise subjects to any
lien the whole or any part of any property or assets now owned or hereafter
acquired by it, except as hereinafter provided in this Section 4.02, the
Company will secure the then-outstanding Securities, and any other obligations
of the Company which may then be outstanding and entitled to the benefit of a
covenant similar in effect to this covenant, equally and ratably with the
indebtedness or obligations secured by such mortgage, pledge or lien, for as
long as any such indebtedness or obligation is so secured. The foregoing
covenant does not apply to the creation, extension, renewal or refunding of
purchase-money mortgages or liens, or other liens to which any property or
asset acquired by the Company is subject as of the date of its acquisition by
the Company, or to the making of any deposit or pledge to secure public or
statutory obligations or with any governmental agency at any time required by
law in order to qualify the Company to conduct its business or any part thereof
or in order to entitle it to maintain self-insurance or to obtain the benefits
of any law relating to workmen's compensation, unemployment insurance, old age
pensions or other social security, or with any court, board, commission or
governmental agency as security incident to the proper conduct of any
proceeding before it. Nothing contained in this Indenture prevents an Affiliate
from mortgaging, pledging or subjecting to any lien any property or assets,
whether or not acquired by such Affiliate from the Company.
SECTION 4.03. Reports by the Company.
The Company covenants:
(a) to file with the Trustee, within 15 days after the Company is
required to file the same with the SEC, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of
any of the foregoing as the SEC may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
SEC pursuant to section 13 or section 15(d) of the Securities Exchange Act
of 1934, as amended; or, if the Company is not required to file
information, documents or reports pursuant to either of such sections, then
to file with the Trustee and the SEC, in accordance with rules and
regulations prescribed from time to time by the SEC, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules
and regulations;
(b) to file with the Trustee and the SEC, in accordance with the TIA
or the rules and regulations prescribed from time to time by the SEC, such
additional information, certificates, documents and reports with respect to
compliance by the Company with the conditions and covenants provided for in
this Indenture as may be required from time to time by the TIA and such
rules and regulations;
(c) to transmit by mail to all Holders of Registered Securities, as
the names and addresses of such Holders appear on the register for each
Series of Securities, to such Holders of Unregistered Securities as have,
within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose, and to each Holder whose name
is then preserved on the Trustee's list pursuant to the first sentence of
Section 2.07 (a), within 30 days after the filing thereof with the Trustee,
such summaries of any information, documents
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and reports required to be filed by the Company pursuant to subsections (a)
and (b) of this Section 4.03 as may be required to be so transmitted by
rules and regulations prescribed from time to time by the SEC; and
(d) to deliver to the Trustee, not less often than annually, a
certificate of the principal executive officer, principal financial officer
or principal accounting officer of the Company as to such officer's
knowledge of the Company's compliance with all conditions and covenants
under this Indenture, determined without regard to any period of grace or
requirement of notice provided under this Indenture.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, etc.
The Company may consolidate with, or merge into, or be merged into, or
transfer or lease its properties and assets substantially as an entirety to,
any person provided the person is a corporation, the person assumes by
supplemental indenture all the obligations of the Company under the Securities
and any coupons appertaining thereto and under this Indenture and, after giving
effect thereto, no Default or Event of Default shall have occurred and be
continuing. The surviving, transferee or lessee corporation shall be the
successor Company, and the predecessor Company, except in the case of a lease,
shall be relieved of all obligations under this Indenture and the Securities
and any coupons appertaining thereto.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" occurs with respect to the Securities of any Series
if:
(1) the Company defaults in the payment of interest on any Security of
that Series when the same becomes due and payable and the Default continues
for a period of 90 days;
(2) the Company defaults in the payment of the principal of any
Security of that Series when the same becomes due and payable at maturity,
upon redemption or otherwise;
(3) the Company fails to comply with any of its other agreements in
the Securities of that Series, in this Indenture or in any supplemental
indenture under which the Securities of that Series may have been issued
and the Default continues for the period and after the notice specified
below;
(4) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially
all of its property, or
(D) makes a general assignment for the benefit of its creditors;
or
(5) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case,
(B) appoints a Custodian of the Company or for all or
substantially all of its
property, or
(C) orders the liquidation of the Company, and the order or
decree remains unstayed and in effect for 90 days.
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The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
A Default under clause (3) is not an Event of Default until the Trustee or
the Holders of at least 25% in principal amount of all the outstanding
Securities of that Series notify the Company (and the Trustee in the case of
notification by such Holders) of the Default and the Company does not cure the
Default within 90 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a "Notice of
Default".
SECTION 6.02. Acceleration.
If an Event of Default occurs with respect to the Securities of any Series
and is continuing, the Trustee, by notice to the Company, or the Holders of at
least 25% in principal amount of all of the outstanding Securities of that
Series, by notice to the Company and to the Trustee, may declare the principal
(or, if the Securities of that Series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of that
Series) of all the Securities of that Series to be due and payable. Upon such
declaration, such principal (or, in the case of Original Issue Discount
Securities, such specified amount) together with all interest accrued thereon
shall be due and payable immediately. The Holders of a majority in principal
amount of all of the Securities of that Series, by notice to the Trustee, may
rescind such a declaration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or waived except nonpayment of principal or interest that has become
due solely because of the acceleration.
SECTION 6.03. Other Remedies Available to Trustee.
(a) If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal or interest on
the Securities of the Series that is in default or to enforce the performance
of any provision of the Securities of that Series or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Existing Defaults.
The Holders of a majority in principal amount of any Series of Securities
by notice to the Trustee may waive an existing Default with respect to that
Series and its consequences except a Default in the payment of the principal of
or interest on any Security.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of the Securities of each
Series affected (with each such Series voting as a class) may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on it. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture,
that is unduly prejudicial to the rights of the Securityholders of all Series
so affected, or that would involve the Trustee in personal liability.
SECTION 6.06. Limitation on Suits by Securityholders.
A Securityholder may pursue a remedy with respect to this Indenture or the
Securities of any Series only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in principal amount of the Securities
of that Series make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense to be, or which may
be, incurred by the Trustee in pursuing the remedy;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
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(5) during such 60 day period, the Holders of a majority in principal
amount of the Securities of that Series do not give the Trustee a direction
inconsistent with the request.
A Securityholder of any Series may not use this Indenture to prejudice the
rights of another Securityholder of that Series or any other Series or to
obtain a preference or priority over another Securityholder of that Series or
any other Series.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal and interest on the
Security, on or after the respective due dates expressed in the Security, and
the right of any Holder of a coupon to receive payment of interest due as
provided in such coupon, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 6.08. Collection Suits by Trustee.
If an Event of Default specified in Section 6.01(l) or (2) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount of such principal and
interest then in default.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and
the Securityholders allowed in any judicial proceedings relating to the
Company, its creditors or its property.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders of Securities in respect of which or for the
benefit of which such money has been collected for amounts due and unpaid
on such Securities for principal and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal and interest, respectively; and
THIRD: to the Company.
Subject to Section 2.14, the Trustee may fix a record date (with respect
to Registered Securities) and payment date for any such payment to Holders of
Securities.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by Holders of more than 10% in principal
amount of the Securities of any Series.
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ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred with respect to any Security of
any Series and is continuing, the Trustee shall exercise its rights and powers
under this Indenture with respect to that Series and use the same degree of
care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default with respect to
any Security of any Series:
(1) The Trustee need perform only those duties with respect to that
Series that are specifically set forth in the Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section.
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable to the Company for interest on any
money received by the Trustee from the Company hereunder except as the Trustee
may agree with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
SECTION 7.02. Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult with
counsel or require an Officers' Certificate or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on a Board Resolution, a Company Order delivered pursuant to
Section 2.05, the written advice of counsel reasonably acceptable to the
Company and the Trustee, a certificate of an Officer or Officers delivered
pursuant to Section 2.02(b), an Officers' Certificate or an Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
7.10 and 7.11.
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SECTION 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities. It shall not be accountable for the Company's use
of the proceeds from the Securities or for monies paid over to the Company
pursuant to the Indenture, and it shall not be responsible for any statement in
the Securities other than its certificate of authentication.
SECTION 7.05. Notice of Defaults.
If a Default occurs and is continuing with respect to the Securities of
any Series and if it is known to the Trustee, the Trustee shall mail to each
Holder of a Security of that Series entitled to receive reports pursuant to
Section 4.03(c) (and, if Unregistered Securities of that Series are
outstanding, shall cause to be published at least once in an Authorized
Newspaper in each of The City of New York, London and, if Securities of that
Series are listed on The Luxembourg Stock Exchange, Luxembourg) notice of the
Default within 90 days after it occurs. Except in the case of a Default in
payment on the Securities of any Series, the Trustee may withhold the notice if
and so long as its corporate trust or similar committee or a committee of its
Responsible Officers in good faith determines that withholding such notice is
in the interests of Securityholders of that Series.
SECTION 7.06. Reports by Trustee to Holders.
(a) The Trustee shall mail to each Securityholder of any Series entitled
to receive reports pursuant to Section 4.03(c) brief reports that comply with
TIA [sec] 313(a) as and when required pursuant to TIA [Sec] 313(a). The Trustee
also shall comply with TIA [Sec] 313(b).
(b) At the time that it mails such a report to Securityholders of any
Series, the Trustee shall file a copy of that report with the SEC and with each
stock exchange on which the Securities of that Series are listed. The Company
shall provide written notice to the Trustee when the Securities of any Series
are listed on any stock exchange.
SECTION 7.07. Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it in connection with the performance of its duties under this
Indenture. Such expenses shall include the reasonable compensation and expenses
of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee against any loss, liability or
expense incurred by it arising out of or in connection with its acceptance or
administration of the trust or trusts hereunder. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made
without its consent.
(c) The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or bad faith.
(d) To secure the payment obligations of the Company pursuant to this
Section, the Trustee shall have a lien prior to the Securities of any Series on
all money or property held or collected by the Trustee except that held in
trust to pay principal and interest on particular Securities of a Series.
(e) If the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01 (4) or (5) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
(a) The resignation or removal of the Trustee and the appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
(b) The Trustee may resign with respect to the Securities of any Series by
so notifying the Company. The Holders of a majority in principal amount of the
Securities of any Series may remove the Trustee with respect to that Series
16
<PAGE>
by so notifying the Trustee and the Company and may appoint a successor Trustee
for such Series with the Company's consent. The Company may remove the Trustee
with respect to Securities of any Series if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to Securities of any Series, the
Company shall promptly appoint a successor Trustee for such Series.
(d) If a successor Trustee with respect to the Securities of any Series
does not take office within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of 10% in principal
amount of the Securities of the applicable Series may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee with respect to the Securities of any Series fails to
comply with Section 7.10, any Securityholder of the applicable Series may
petition any court of competent jurisdiction for the removal of such Trustee
and the appointment of a successor Trustee.
(f) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee for any Series of Securities
shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the retiring Trustee with respect to all Series of
Securities for which the successor Trustee is to be acting as Trustee under
this Indenture. The retiring Trustee shall promptly transfer all property held
by it as Trustee with respect to such Series of Securities to the successor
Trustee subject to the lien provided for in Section 7.07. The Company shall
give notice of each appointment of a successor Trustee for any Series of
Securities (i) by mailing written notice of such event by first-class mail to
the Holders of Securities of such Series entitled to receive reports pursuant
to Section 4.03(c) and (ii) if any Securities of such Series have been issued
and are outstanding in the form of Unregistered Securities, by publishing
notice of such event once in an Authorized Newspaper in each of The City of New
York, London, and, if Securities of such Series are listed on The Luxembourg
Stock Exchange, Luxembourg.
(g) All provisions of this Section 7.08 except subparagraphs (b) (1) and
(e) and the words "subject to the lien provided for in Section 7.07" in
subparagraph (f) shall apply also to any Paying Agent located outside the U.S.
and its possessions and required by Section 2.04.
(h) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) Series, the Company, the
retiring Trustee and such successor Trustee shall execute and deliver a
supplemental indenture wherein such successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, such successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those Series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
Series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee.
SECTION 7.09. Successor Trustee, Agents by Merger, etc.
If the Trustee or any Agent consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business assets to,
another corporation, the successor corporation, without any further act, shall
be the successor Trustee or Agent, as the case may be.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee with respect to each Series of
Securities who satisfies the requirements of TIA [sec] 310(a)(1) and (5). The
Trustee (or any affiliate thereof which has unconditionally guaranteed the
obligations
17
<PAGE>
of the Trustee hereunder) shall always have a combined capital and surplus of
at least $25,000,000 as set forth in its most recent published annual report of
condition. The Trustee is subject to TIA [sec] 310(b), except that there shall
be excluded from the operation of TIA [sec] 310(b)(1) all indentures of the
Company, and series of securities issued thereunder, now or hereafter existing
which may be excluded under the proviso of TIA [sec] 310(b)(1), and all Series
of Securities issued subsequent to the issuance of the first Series of
Securities hereunder.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA [sec] 311(a), excluding any creditor
relationship listed in TIA [sec] 311(b). A Trustee who has resigned or been
removed shall be subject to TIA [sec] 311(a) to the extent indicated.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations.
(a) The Company reserves the right to terminate all of its obligations
under the Securities and this Indenture with respect to the Securities of any
Series or with respect to any installment of principal of or interest on that
Series if the Company irrevocably deposits in trust with the Trustee money or
U.S. Government Obligations sufficient to pay, when due, principal and interest
on the Securities of that Series to maturity or redemption or such installment
of principal or interest, as the case may be, and if all other conditions set
forth in the Securities of that Series are met. The Company shall designate the
installment or installments of principal or interest to be so satisfied.
(b) However, the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06,
2.07, 2.08, 2.09, 4.01, 7.07, 7.08, 8.03, 8.04, 10.04 and 10.05 shall survive
until the Securities are no longer outstanding. Thereafter the Company's
obligations in Sections 7.07, 8.03 and 8.04 shall survive.
(c) Before or after a deposit the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date
in accordance with Article 3.
(d) After a deposit by the Company in accordance with this Section in
respect of the Securities of a Series, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of the Series in respect of which the deposit has been made and this
Indenture with respect to the Securities of that Series except for those
surviving obligations specified above.
(e) In order to have money available on a payment date to pay principal or
interest on the Securities of any Series, the U.S. Government Obligations shall
be payable as to principal or interest on or before such payment date in such
amounts as will provide the necessary money. U.S. Government Obligations shall
not be callable at the issuer's option.
(f) "U.S. Government Obligations" means:
(i) direct obligations of the United States of America for the payment
of which the full faith and credit of the United States of America is
pledged; or
(ii) obligations of a person controlled or supervised by and acting as
an agency or instrumentality of the United States of America, the payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America.
SECTION 8.02. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal and interest on the
Securities of each Series in respect of which the deposit shall have been made.
SECTION 8.03. Excess or Unclaimed Money.
(a) The Trustee and the Paying Agent shall promptly pay to the Company
upon request any excess money or securities held by them at any time.
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(b) The Trustee and the Paying Agent shall retain the money held by them
for the payment of principal or interest that remains unclaimed until such time
as the money, or any portion thereof, is paid and delivered by the Trustee to
an appropriate state authority pursuant to the applicable abandoned property
law. Thereafter, Securityholders entitled to money which has been delivered to
a state authority as abandoned property must look to such state authority for
payment.
SECTION 8.04. Indemnity for Government Obligations.
The Company shall pay and shall indemnify the Trustee and each
Securityholder of each Series in respect of which the deposit shall have been
made against any tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or the principal and interest received on
such obligations.
ARTICLE 9
AMENDMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company and the Trustee may enter into one or more supplemental
indentures without consent of any Securityholder for any of the following
purposes:
(1) to cure any ambiguity, defect or inconsistency herein or in the
Securities of any Series;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(4) to make any change that does not adversely affect the rights of
any Securityholder; or
(5) to provide for the issuance of and establish the form and terms
and conditions of Securities of any Series as provided in Section 2.02, to
establish the form of any certifications required to be furnished pursuant
to the terms of this Indenture or any Series of Securities, or to add to
the rights of the Holders of any Series of Securities.
SECTION 9.02. With Consent of Holders.
(a) With the written consent of the Holders of a majority in principal
amount of the outstanding Securities of each Series affected by such
supplemental indenture (with each Series voting as a class), the Company and
the Trustee may enter into a supplemental indenture to add any provisions to or
to change or eliminate any provisions of this Indenture or of any supplemental
indenture or to modify, in each case in any manner not covered by Section 9.01,
the rights of the Securityholders of each such Series. The Holders of a
majority in principal amount of the outstanding Securities of each Series
affected by such waiver (with each Series voting as a class), by written notice
to the Trustee, may waive compliance by the Company with any provision of this
Indenture, any supplemental indenture or the Securities of any such Series
except a Default in the payment of the principal of or interest on any
Security. However, without the consent of each Securityholder affected, an
amendment or waiver may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment or waiver;
(2) change the rate of or change the time for payment of interest on
any Security;
(3) change the principal of or change the fixed maturity of any
Security;
(4) waive a Default in the payment of the principal of or interest on
any Security;
(5) make any Security payable in money other than that stated in the
Security; or
(6) make any change in Section 6.04, 6.07 or 9.02(a) (third sentence).
(b) It is not necessary under this Section 9.02 for the Securityholders to
consent to the particular form of any proposed supplemental indenture, but it
is sufficient if they consent to the substance thereof.
(c) Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 9.02, the
Company shall transmit by mail a notice, setting forth in general terms the
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substance of such supplemental indenture, to all Holders of Registered
Securities, as the names and addresses of such Holders appear on the register
for each Series of Securities, and to such Holders of Unregistered Securities
as are entitled to receive reports pursuant to Section 4.03(c). Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities of one or more Series
shall be set forth in a supplemental indenture that complies with the Trust
Indenture Act of 1939 as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment or waiver becomes effective.
After an amendment or waiver becomes effective, it shall bind every
Securityholder of each Series affected by such amendment or waiver.
SECTION 9.05. Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment or waiver
on any Security of any Series thereafter authenticated. The Company in exchange
for Securities of that Series may issue and the Trustee shall authenticate new
Securities of that Series that reflect the amendment or waiver.
SECTION 9.06. Trustee Protected.
The Trustee need not sign any supplemental indenture that is reasonably
likely to affect adversely its rights.
SECTION 9.07. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts with a
provision which is required to be included in this Indenture by the TIA, the
required provision shall control.
SECTION 10.02. Notices.
(a) Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in person or mailed by first-class
mail:
if to the Company to:
Bell Atlantic-Pennsylvania, Inc.
1717 Arch Street
Philadelphia, PA 19103
Attention: Controller and Chief Financial Officer
with a required copy to:
20
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Bell Atlantic Corporation
1095 Avenue of the Americas
New York, NY 10036
Attention: Treasurer
if to the Trustee to:
The Chase Manhattan Bank
701 Market Street, 5th Floor
Philadelphia, PA 19106
Attention: Corporate Trust Department
(b) The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(c) Any notice or communication to Holders of Securities entitled to
receive reports pursuant to Section 4.03(c) shall be mailed by first-class mail
to the addresses for Holders of Registered Securities shown on the register
kept by the Registrar and to addresses filed with the Trustee or preserved on
the Trustee's list pursuant to the first sentence of Section 2.07(a) for other
Holders. Failure to so mail a notice or communication or any defect in such
notice or communication shall not affect its sufficiency with respect to other
Holders of Securities of that or any other Series entitled to receive notice.
(d) If a notice or communication is mailed in the manner provided above
within the time prescribed, it is conclusively presumed to have been duly
given, whether or not the addressee receives it.
(e) If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and to each Agent at the same time.
(f) If it shall be impractical in the opinion of the Trustee or the
Company to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
SECTION 10.03. Communication by Holders with Other Holders.
Securityholders of any Series may communicate pursuant to TIA [Sec] 312(b)
with other Securityholders of that Series or of all Series with respect to
their rights under this Indenture or under the Securities of that Series or of
all Series. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA [Sec] 312(c).
SECTION 10.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 10.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has read
such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
21
<PAGE>
(4) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
SECTION 10.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by, or a meeting of,
Securityholders of one or more Series. The Paying Agent or Registrar may make
reasonable rules and set reasonable requirements for its functions.
SECTION 10.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday, or a day on which banking
institutions in the Commonwealth of Pennsylvania are not required to be open.
If a payment date is a Legal Holiday at a place of payment, payment may be made
at such place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
SECTION 10.08. Governing Law.
The laws of the Commonwealth of Pennsylvania shall govern this Indenture,
the Securities and any coupons appertaining thereto.
SECTION 10.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or an Affiliate. No such indenture, loan or debt
agreement may be used to interpret this Indenture.
SECTION 10.10. No Recourse Against Others.
No director, officer, employee, stockholder or Affiliate, as such, of the
Company shall have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting
a Security waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Securities.
22
<PAGE>
SECTION 10.11. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one instrument.
BELL ATLANTIC-PENNSYLVANIA, INC.
By: /s/ Edwin F. Hall
---------------------------------------------
Title: Controller and Chief Financial Officer
(SEAL)
Attest:
/s/ Kathleen M. McLeod
- ---------------------------
Assistant Secretary
THE CHASE MANHATTAN BANK
By: /s/ J.C. Progar
---------------------------------------------
Title: Authorized Officer
(SEAL)
Attest:
/s/ P.J. Healy
- ---------------------------
Authorized Officer
23
Officers' Certificate Pursuant to Section
2.02(b) of the Indenture Identified Below
The undersigned, Edwin F. Hall, Controller and Chief Financial Officer, and Neil
D. Olson, Treasurer, respectively, of Bell Atlantic - Pennsylvania, Inc. (the
"Company"), acting pursuant to authorizations contained in Board Resolutions,
copies of which are delivered herewith, duly adopted on July 29, 1993, by the
Board of Directors of the Company, do hereby authorize, adopt and approve the
following terms for a series (the "Series") of the Company's debt securities to
be issued under an Indenture, dated as of September 1, 1998 (the "Indenture"),
from the Company to The Chase Manhattan Bank, as successor Trustee (the
"Trustee"), pursuant to the Registration Statements on Form S-3 (Nos. 33-50869
and 33-55252) under the Securities Act of 1933, as amended. (As used herein, the
term "Prospectus" shall mean the Prospectus dated December 2, 1998, as
supplemented by the Prospectus Supplement dated December 2, 1998, filed with the
Securities and Exchange Commission with respect to the Series.)
(1) Title of Securities of the Series: Thirty Year 6% Debentures,
due December 1, 2028
(2) Limit, if any, on the aggregate
principal amount of Securities
of the Series: $125,000,000
(3) Date or dates, or manner of
determining the same, on which
the principal of Securities of
the Series is payable: December 1, 2028
(4) With respect to interest on
Securities of the Series:
(a) The rate or method of
calculation: 6% per annum
(b) The date from which
such interest shall accrue: December 9, 1998
(c) The dates on which interest
shall be payable or the manner
of determining the same: June 1 and December 1
commencing June 1, 1999
<PAGE>
(d) Record dates for interest
payable on any interest
payment date: To holders of record at the
close of business on May 15
and November 15 prior to the
interest payment date.
(5) Place or places where
Securities of the Series
shall be payable: At the office or agency of the
Company in New York, New York.
At its option, the Company may
pay interest by check mailed to
the holder's address as it
appears on the register.
(6) With respect to redemption,
in whole or in part, of Securities
of the Series at the option of
the Company:
(a) The period or periods
within which such
redemptions may be made: Not Applicable
(b) The applicable redemption
price or prices: Not Applicable
(c) The terms and conditions
of such redemptions: Not Applicable
(7) With respect to the mandatory
redemption or purchase of
Securities of the Series:
(a) Any provision for a sinking
or analogous fund or for
redemption or purchase at
the option of a Holder: Not Applicable
(b) The period or periods
within which such
redemptions or purchases
must be made: Not Applicable
(c) The applicable redemption
or purchase price or prices: Not Applicable
<PAGE>
(d) The terms and conditions of
such redemptions or
purchases: Not Applicable
(8) Denominations in which Securities
of the Series are issuable, if
other than $1,000 and any
integral multiples thereof: Not Applicable
(9) If other than the principal amount
thereof, the portion of the
principal amount of Securities of
the Series payable on declaration
of acceleration: Not Applicable
(10) (a) Whether Securities of the
Series are issuable as Registered
Securities, Unregistered
Securities (with or without
interest coupons), or any
combination thereof: Registered Securities
(b) Whether, and the terms upon
which, Unregistered Securities
of the Series may be exchanged
for Registered Securities of the
same Series and vice versa: Not Applicable
(11) Any provisions for payment of
additional amounts for taxes and
for redemption, in the event the
Company must comply with the
reporting requirements or must
pay additional amounts in respect
of any Securities of the Series: Not Applicable
(12) With respect to the issuance
of any Global Securities of the
Series: To be issued wholly in
permanent form for deposit
with The Depository Trust
Company, as Depositary.
<PAGE>
(13) Any other covenants and terms of
Securities of the Series,
including any additional
restrictive covenants not
described above and any terms
required by United States laws
or regulations: None
(14) Issue price to public of
Securities of the Series: 99.30 %
(15) Underwriter's commission or
discount as a percentage of the
principal amount of Securities of
the Series to be issued: 0.45%
(16) Agency fees as a percentage of
the principal amount of Securities
of the Series to be issued: Not Applicable
Annexed hereto is the form of the Securities of the Series.
The capitalized terms used in this Certificate (unless otherwise defined
herein) have the meanings as defined in the Indenture.
IN WITNESS WHEREOF, I have executed this Certificate on behalf of the
Company.
Bell Atlantic - Pennsylvania, Inc.
/s/ Edwin F. Hall
------------------------------------------
Edwin F. Hall
Controller and Chief Financial Officer
/s/ Neil D. Olson
------------------------------------------
Neil D. Olson
Treasurer
Dated: As of December 2, 1998
<PAGE>
CUSIP NO. 07786D AA4
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. 001 $125,000,000
BELL ATLANTIC - PENNSYLVANIA, INC.
Thirty Year 6% Debentures,
due December 1, 2028
BELL ATLANTIC - PENNSYLVANIA, INC., a corporation duly organized and
existing under the laws of the Commonwealth of Pennsylvania (herein referred to
as the "Company"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of ONE HUNDRED TWENTY-FIVE MILLION DOLLARS
($125,000,000) on December 1, 2028, at the office or agency of the Company
maintained for that purpose in New York City, in such coin or currency of the
United States of America as at the time of payment shall be legal tender for the
payment of public and private debts, and to pay interest on said principal sum
until paid or made available for payment, semi-annually on June 1 and December 1
of each year beginning on June 1, 1999, unless such June 1 or December 1 is a
Legal Holiday (as defined in the Indenture), in which case on the next
succeeding day that is not a Legal Holiday at said office or agency, in like
coin or currency, at the rate of 6% per annum, from the first day of June or
December, as the case may be, to which interest on Debentures has been paid next
preceding the date hereof (unless the date hereof is a June 1 or December 1 to
which interest has been paid, in which case from the date hereof, or unless the
date hereof is prior to the first payment of interest, in which case from
December 9, 1998) until payment of said principal sum has been made or duly
provided for; provided, however, that payment of interest may be made at the
option of the Company by check or draft mailed to the address of the person
entitled thereto at such address as shall appear on the register for the
Debentures.
<PAGE>
2
Notwithstanding the foregoing, unless this Debenture shall be authenticated at a
time when there is an existing default in payment of interest on the Debentures,
if the date hereof is after May 15, and before the next following June 1 or is
after November 15 and before the next following December 1, this Debenture shall
bear interest from such June 1 or December 1; provided, however, that if the
Company shall default in the payment of interest due on such June 1 or December
1, then this Debenture shall bear interest from the next preceding December 1 or
June 1, as the case may be, to which interest has been paid. The interest so
payable on any June 1 or December 1 will, subject to certain exceptions provided
in the Indenture referred to on the reverse hereof, be paid to the persons in
whose name this Debenture shall be registered at the close of business on the
May 15 prior to such June 1 or the November 15 prior to such December 1, whether
or not such May 15 or November 15 is a Legal Holiday.
THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC OR BY
A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC.
Reference is made to the further provisions of this Debenture set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Debenture shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture referred to on the reverse hereof.
<PAGE>
3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
BELL ATLANTIC - PENNSYLVANIA, INC.
[SEAL] By: ___________________________
President
By: ___________________________
Treasurer
Attest: ______________________
Assistant Secretary
TRUSTEE'S AUTHENTICATION
This is one of the Securities of the series designated therein described in
the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: __________________________
Authorized Signature
AGENT FOR TRANSFER, EXCHANGE AND PAYMENT: FIRST UNION NATIONAL BANK, NEW YORK,
NEW YORK
<PAGE>
BELL ATLANTIC - PENNSYLVANIA, INC.
Thirty Year 6% Debentures,
due December 1, 2028
This Security is one of a duly authorized issue of debt securities of the
Company (herein called the "Debentures"), issued and to be issued under and
pursuant to an Indenture dated as of September 1, 1998 (herein called the
"Indenture"), between the Company and The Chase Manhattan Bank, as Trustee
(herein, together with any successor trustee or trustees under the Indenture,
called the "Trustee"), to which Indenture and all indentures supplemental
thereto, and all Board Resolutions (as defined in the Indenture as provided
therein, reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the Holders (the word "Holders" or "Holder" meaning, as defined in
the Indenture, the registered holders or registered holder of the Debentures)
and of the terms upon which the Debentures are, and are to be, authenticated and
delivered. This Debenture is one of the series designated on the face hereof,
limited in aggregate principal amount to $125,000,000.
In case an Event of Default, as defined in the Indenture, with respect to
the Debentures shall have occurred and be continuing, the principal hereof may
be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture provides, in Section 9.01, that the Company and the Trustee
may enter into one or more supplemental indentures without consent of any Holder
for specified purposes including to make any change that does not adversely
affect the rights of any Holder or to provide for the issuance of and establish
the form and terms and conditions of Securities of any series as provided in
Section 2.02 of the Indenture, to establish the form of any certifications
required to be furnished pursuant to the terms of the Indenture or any series of
Securities, or to add to the rights of the Holders of any series of Securities.
With the written consent of the Holders of a majority in principal amount of the
outstanding Securities of each series affected by such supplemental indenture
(with each series voting as a class), the Company and the Trustee may enter into
a supplemental indenture to add any provisions to or to change or eliminate any
provisions of the Indenture or of any supplemental indenture or to modify, in
each case in any manner not covered by Section 9.01, the rights of the Holders
of each such series. It also provides that the Holders of a majority in
principal amount of the outstanding Securities of each series affected by such
waiver (with each series voting as a class), by written notice to the Trustee,
may waive compliance by the Company with any provision of the Indenture, any
supplemental indenture or the Securities of any such series except a Default in
the payment of the principal of or interest on any Security. However, without
the consent of each Holder affected, an amendment or waiver may not: (i) reduce
the amount of Securities whose Holders must consent to an amendment or waiver;
(ii) change the rate of or change the time for payment of interest on any
Securities; (iii) change the principal of or change the fixed maturity of any
Security; (iv) waive a default in the payment of the principal of or interest on
any Security; (v)
<PAGE>
2
make any Security payable in money other than that stated in the Security; or
(vi) make any change in Sections 6.04, 6.07 or 9.02(a) (third sentence) of the
Indenture. Any such consent or waiver by the Holder of this Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders of this Debenture and any Debentures which
may be issued upon the transfer hereof or in exchange or substitution herefor,
irrespective of whether or not any notation of such consent is made upon this
Debenture or such other Debentures.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Debenture at the place, at the respective times, at the rate and in the
currency herein prescribed.
The Debentures are issuable in global or definitive form without coupons in
denominations of $1,000 and integral multiples of $1,000 in excess thereof. Upon
due presentment for registration of transfer of this Debenture at the principal
office of the Trustee, a new Debenture or Debentures in authorized denominations
for an equal aggregate principal amount and like interest rate and maturity will
be issued to the transferee in exchange therefor, subject to the limitations
provided in the Indenture and to the limitations described below if applicable,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Debentures are not redeemable at the option of the Company prior to
maturity.
This Debenture is exchangeable only if (a) DTC notifies the Company that it
is unwilling or unable to continue as the Depository for this Global Debenture
or if at any time DTC ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (b) the Company in its sole
discretion determines that this Debenture shall be exchangeable for definitive
Debentures in registered form, or (c) an Event of Default with respect to the
Debentures represented hereby has occurred and is continuing. If this Debenture
is exchangeable pursuant to the preceding sentence, it shall be exchangeable for
definitive Debentures in registered form, bearing interest at the same rate,
having the same date of issuance, redemption provisions, if any, maturity and
other terms and of differing denominations aggregating a like amount, subject to
the limitations in the Indenture, without charge except for any tax or other
governmental charge imposed in connection therewith.
Ownership of the Debentures shall be proved by the register for the
Debentures kept by the above-mentioned Agent of the Company. The Company, the
Trustee and any agent of the company may treat the person in whose name a
Debenture is registered as the absolute owner thereof for all purposes.
No recourse for the payment of the principal of or any interest on this
Debenture, or for any claim based hereon or otherwise in respect hereof, and no
recourse under or upon any obligation, covenant or agreement of the Company in
the Indenture or any indenture supplemental thereto or in any Debenture, or
because of the creation of any indebtedness
<PAGE>
3
represented thereby, shall be had against any shareholder, officer, director,
employee or Affiliate, as such, past, present or future, of the Company or of
any successor corporation, either directly or through the Company or any
successor corporation, whether by virtue of any constitution, statute or rule of
law or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned to them in the Indenture.
This Security shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania.
<PAGE>
4
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT -- ............Custodian............
(Cust) (Minor)
Under Uniform Gifts to Minor Acts
---------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assigns(s) and
transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee:
- ---------------------------------------------------------------
- ---------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- ---------------------------------------------------------------
- ---------------------------------------------------------------
the within Debenture of BELL ATLANTIC - PENNSYLVANIA, INC. and does hereby
irrevocably constitute and appoint
- ---------------------------------------------------------------
- ---------------------------------------------------------------
Attorney to transfer the said Debenture on the books of the Company, with full
power of substitution in the premises.
DATED: _________________ ____________________________
<PAGE>
5
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alternation or enlargement or any change whatever.
IMPORTANT TAX INFORMATION
Please Read This Notice Carefully
Under Federal Income tax law, paying agents may be required to withhold a
portion of payments to Holders presenting their securities for redemption or for
payment at maturity if such Holders have failed to furnish a Taxpayer
Identification Number to the Paying Agent certified to be correct under
penalties of perjury.
EXHIBIT 12
BELL ATLANTIC--PENNSYLVANIA, INC.
Computation of Ratio of Earnings to Fixed Charges
(Dollars in Millions)
<TABLE>
<CAPTION>
Nine Months
Ended
September 30, 1998
-------------------
<S> <C>
Income before provision for income taxes,
extraordinary items, and cumulative effect of
changes in accounting principles ..................... $ 538.6
Interest expense ...................................... 92.1
Portion of rent expense representing interest ......... 14.2
Amortization of capitalized interest .................. 4.7
--------
Income, as adjusted ................................... $ 649.6
========
Fixed charges:
Interest expense ...................................... $ 92.1
Portion of rent expense representing interest ......... 14.2
Capitalized interest .................................. 6.8
--------
Fixed Charges ......................................... $ 113.1
========
Ratio of Earnings to Fixed Charges .................... 5.74
========
<CAPTION>
Years Ended December 31,
-----------------------------------------------------------
1997 1996 1995 1994 1993
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Income before provision for income taxes,
extraordinary items, and cumulative effect of
changes in accounting principles ..................... $ 589.6 $ 700.6 $ 730.8 $ 624.1 $ 586.5
Interest expense ...................................... 114.8 112.0 120.6 125.4 131.9
Portion of rent expense representing interest ......... 17.5 14.1 19.5 19.0 18.9
Amortization of capitalized interest .................. 5.5 5.8 6.7 1.3 --
-------- -------- -------- -------- --------
Income, as adjusted ................................... $ 727.4 $ 832.5 $ 877.6 $ 769.8 $ 737.3
======== ======== ======== ======== ========
Fixed charges:
Interest expense ...................................... $ 114.8 $ 112.0 $ 120.6 $ 125.4 $ 131.9
Portion of rent expense representing interest ......... 17.5 14.1 19.5 19.0 18.9
Capitalized interest .................................. 6.1 5.4 7.5 2.2 --
-------- -------- -------- -------- --------
Fixed Charges ......................................... $ 138.4 $ 131.5 $ 147.6 $ 146.6 $ 150.8
======== ======== ======== ======== ========
Ratio of Earnings to Fixed Charges .................... 5.26 6.33 5.95 5.25 4.89
======== ======== ======== ======== ========
</TABLE>
