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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 - January 21, 1997
(Date of earliest event reported)
GTE CORPORATION
(Exact name of registrant as specified in its charter)
NEW YORK 1-2755 13-1678633
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
ONE STAMFORD FORUM
STAMFORD, CONNECTICUT 06904
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (203) 965-2000
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GTE Corporation
FORM 8-K
ITEM OF INFORMATION
ITEM 7. Financial Statements and Exhibits
(c) Exhibits
3.1(a) - Restated Certificate of Incorporation of GTE Corporation,
effective December 12, 1996.
4.1 - Indenture dated as of December 1, 1996 between GTE Corporation
and The Bank of New York, as Trustee, pertaining to
Registration Statements on Form S-3 (File Nos. 33-63145
and 33-40247) under which the Securities referenced therein
are to be issued.
4.2 - Form of Supplemental Indenture dated as of __________, 199_,
between GTE Corporation and The Bank of New York, as Trustee,
pertaining to Registration Statements on Form S-3 (File
Nos. 33-63145 and 33-40247) under which the Securities
referenced therein are to be issued.
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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.
GTE CORPORATION
(Registrant)
MARIANNE DROST
(Marianne Drost)
Secretary
Date: January 21, 1997
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[FILED DECEMBER 12, 1996]
RESTATED
CERTIFICATE OF INCORPORATION
OF
GTE CORPORATION
------------------
UNDER SECTION 807 OF THE BUSINESS CORPORATION LAW
We, the undersigned, Charles R. Lee and Marianne Drost, being respectively
the Chairman of the Board and Chief Executive Officer, and the Secretary of GTE
Corporation, hereby certify:
I. The name of the Corporation is GTE Corporation (originally
incorporated as General Telephone Corporation).
II. The Certificate of Incorporation of the Corporation was filed by the
Department of State on the 25th day of February, 1935.
III. The Certificate of Incorporation is amended to effect the following
amendments authorized by the Business Corporation Law:
Article 5 of the Certificate of Incorporation is amended to effect the
elimination, from the enumeration and description of shares which the
Corporation is authorized to issue, of the designations of (i) all series
of the Preferred Stock, the remaining outstanding shares of all such series
having been redeemed in accordance with their terms on December 11, 1995
and December 26, 1995, and (ii) the $2.00 Convertible No Par Preferred
Stock, the remaining outstanding shares of such series having been redeemed
in accordance with their terms on December 26, 1995, by striking Articles 5
[B] through 5 [K] and redesignating Article 5 [L], wherever such
designation occurs, as Article 5 [B].
Article 5 [A-1] (3) of the Certificate of Incorporation is amended to
remove all mention of the 7.85% Preferred Stock and 7.75% Preferred Stock.
Article 16 of the Certificate of Incorporation is amended to remove
all mention of the 4.36% Convertible Preferred Stock.
IV. The text of the Certificate of Incorporation is hereby restated
without further amendment or change, to read as herein set forth in full:
CERTIFICATE OF INCORPORATION
OF
GTE CORPORATION
1. The name of the Corporation is GTE Corporation.
2. The purposes of the Corporation shall be as follows:
A. To acquire and hold securities of telephone and/or other communication
corporations and corporations owning securities of telephone and/or other
communication corporations.
B. To subscribe for, underwrite, invest in, purchase or otherwise acquire,
own, hold, sell, assign, deal in, exchange, transfer, mortgage, pledge or
otherwise dispose of, any securities created or issued by any public, municipal,
quasi-public or private corporation of any kind wherever organized (including,
without limiting the generality of the foregoing, the corporations described in
the foregoing paragraph "A"), or by any national, state or local government or
by any partnership or individual, and to lend money upon the security of, and
acquire and hold as pledgee or mortgagee or otherwise, any such securities, and
to issue, in exchange for any such securities, its own securities; while the
owner or holder of any such securities, or any interest therein, to
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possess and to exercise in respect thereof all the rights, powers and privileges
incident to such ownership or interest; to guarantee the payment of dividends on
any shares of the capital stock of any corporation in which this Corporation may
at any time have an interest, and to become surety in respect of, endorse or
guarantee in any lawful manner the payment of the principal of or interest on
any bonds, debentures, notes, or other evidences of indebtedness created, issued
or incurred by any corporation, partnership or individual, any of whose
securities are at any time held by or for this Corporation or in which this
Corporation may at any time have an interest, and to become surety for or
guarantee in any lawful manner the carrying out and performance of any and all
contracts, leases and obligations of every kind of any such corporation,
partnership or individual; to lend money to and/or otherwise aid in any lawful
manner any corporation, partnership or individual whose securities may at any
time be held by or for this Corporation or in which this Corporation may at any
time have an interest, and to do any acts and things permitted by law and
designed to protect, preserve, improve or enhance the value of any such
securities or interest.
C. To improve, manage, develop, sell, assign, transfer, lease, mortgage,
pledge or otherwise dispose of or deal with all or any part of the property of
this Corporation, and from time to time to vary any investment or employment of
funds of this Corporation.
D. To investigate and report with respect to, and to undertake, carry on,
aid, assist or participate in the reorganization or liquidation of any
corporation in which this Corporation may at any time have an interest, and for
that purpose and to the extent then permitted to corporations organized under
the Business Corporation Law of the State of New York, to take charge of the
properties, manage the affairs and conduct the business of any such corporation;
and, in connection with the foregoing, to purchase or otherwise acquire, hold,
own, develop, improve, lease, exchange, sell, mortgage, convey or otherwise
dispose of and deal in and with lands and leaseholds and any interests and
rights in real or personal property wheresoever situated, and also any
franchises, rights, licenses or privileges necessary or appropriate for any of
the purposes in this paragraph "D" expressed.
E. To acquire the good-will, rights, property, business and franchises, of
any person, partnership or corporation whatsoever, now or hereafter engaged in
any business which this Corporation may lawfully conduct; to pay therefor in
cash or in property or in securities of this Corporation or otherwise, in the
manner provided by law; to hold, utilize, enjoy, and in any manner dispose of,
the whole or any part of the rights and property so acquired; to assume in
connection therewith any liabilities of any such person, partnership or
corporation; and to conduct in any lawful manner the whole or any part of the
business thus acquired.
F. To borrow money for any of the purposes of this Corporation, and to
issue its bonds, debentures, notes or other obligations therefor, and to secure
the same by pledge or mortgage of the whole or any part of the property of this
Corporation either real or personal, or to issue its bonds, debentures, notes or
other obligations without any such security; and to sell, pledge, hypothecate or
otherwise dispose of any or all such bonds, debentures, notes and other
obligations in such manner and upon such terms and at such prices as the Board
of Directors shall determine.
G. To organize, or cause to be organized, under the laws of any state,
district, territory, province, country or nation a corporation or corporations
for the purpose of accomplishing any or all of the purposes for which this
Corporation is organized, and to dissolve, wind up, liquidate, merge or
consolidate any such corporation or corporations, or to cause the same to be
dissolved, wound up, liquidated, merged or consolidated.
H. To have one or more offices, and to carry on and conduct any or all of
its operations and business, and, without restriction or limit as to amount, to
purchase, lease or otherwise acquire, hold, own, mortgage, sell, convey, lease
or otherwise dispose of, real and personal property of every class and
description, in any part of the world.
I. To carry on any other lawful business whatsoever incidental to the
accomplishment of the purposes hereinbefore set forth; to do any and all such
things as are necessary or convenient to the attainment of the purposes of this
Corporation, or any of them, to the same extent as a natural person might
lawfully do in any part of the world, insofar as such acts are permitted to be
done by a corporation organized under the Business Corporation Law of the State
of New York.
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The foregoing paragraphs of this Article 2 shall be construed as defining
both the purposes and the powers of this Corporation, but the foregoing
enumeration of specific purposes and powers shall not be held to limit or
restrict in any manner the powers of this Corporation, but is in furtherance of,
and in addition to, the general powers conferred upon corporations organized
under the Business Corporation Law of the State of New York.
It is intended that none of the purposes and powers specified in the
several paragraphs of this Article 2 shall, except as herein otherwise expressly
provided, in anywise be limited or restricted by reference to or inference from
the terms of any other of said paragraphs, and that each of the purposes and
powers specified in this Article 2 shall be regarded as independent purposes and
powers.
This Corporation shall not have the power to construct, maintain or operate
any public utility.
3. The office of the Corporation is to be located in the City of New York,
County of New York, State of New York.
4. The aggregate number of shares which the Corporation shall have
authority to issue is 2,020,945,266 shares, of which 9,217,764 shares of the par
value of $50.00 each shall be Preferred Stock, 11,727,502 shares without par
value shall be No Par Preferred Stock and 2,000,000,000 shares of the par value
of $.05 each shall be Common Stock.
5. The designations, preferences, privileges and voting powers of the
shares of each class of the Corporation (including all shares of Preferred Stock
and No Par Preferred Stock irrespective of series), and the restrictions or
qualifications thereof, are as follows:
[A-1] Preferred Stock. The shares of Preferred Stock may be issued from
time to time in one or more series and, subject to the provisions of the
following paragraphs "(1)" to "(4)" inclusive, and to the provisions of Parts
[A-2] through [A-5] of this Article 5, the Board of Directors is hereby
expressly authorized to fix from time to time before issuance the designations,
preferences and privileges of the shares of each series of the Preferred Stock,
and the restrictions or qualifications thereof. The Preferred Stock shall rank
pari passu with the No Par Preferred Stock referred to in Parts [A-2] through
[A-5] of this Article 5 in right of payment of dividends and upon liquidation,
dissolution or winding up of the Corporation, as set forth in Part [A-3] of this
Article 5. Accordingly, certain preferences and privileges set forth in this
Part [A-1] with respect to the Preferred Stock are subject to the further
limitations referred to in Parts [A-2] through [A-5] of this Article 5 to which
reference is hereby made.
(1) Each series shall be designated so as to distinguish the shares thereof
from the shares of all other series. All shares of the Preferred Stock of all
series shall be of equal rank and all shares of any particular series of the
Preferred Stock shall be identical except as to the date or dates from which
dividends thereon shall be cumulative as hereinafter in paragraph "(2)"
provided. The shares of the Preferred Stock of different series may vary as to
the following preferences and privileges, and restrictions and qualifications
thereof:
(a) The annual dividend rate (within such limits as shall be permitted
by law) for the particular series and the date from which dividends on all
shares of such series issued prior to the record time for the first
dividend for such series shall be cumulative;
(b) The redemption price or prices for the particular series;
(c) The amount or amounts per share for the particular series payable
to the holders thereof upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation; provided, however, that the
amount or amounts per share payable to the holder of any Preferred Stock
upon any involuntary liquidation, dissolution or winding up of the
Corporation shall not be fixed at more than Fifty Dollars ($50) per share;
(d) The terms and amount of any sinking fund provided for the purchase
or redemption of shares of the particular series; and
(e) The conversion or other special privileges, and the restrictions
or qualifications thereof, if any, of the particular series.
(2) The holders of each series of the Preferred Stock at the time
outstanding shall be entitled to receive, but only when and as declared by the
Board of Directors, out of funds legally available for the payment of
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dividends, cumulative preferred dividends, at the annual dividend rate for the
particular series fixed therefor as herein provided, payable quarter-yearly on
the first days of January, April, July and October in each year, to the
stockholders of record on the respective dates, not exceeding forty (40) days
preceding such dividend payment dates, fixed for the purpose by the Board of
Directors. The dividends on shares of all series of the Preferred Stock shall be
cumulative. In the case of all shares of each particular series, the dividends
on shares of such series shall be cumulative:
(a) If issued prior to the record time for the first dividend on the
shares of such series, then from the date for the particular series fixed
therefor as herein provided;
(b) If issued during the period commencing immediately after a record
time for a dividend and terminating at the close of the payment date for
such dividend, then from such dividend payment date; and
(c) Otherwise from the quarter-yearly dividend payment date next
preceding the date of issue of such shares.
Unless dividends on all outstanding shares of each series of the Preferred
Stock, at the annual dividend rate and from the dates for accumulation thereof
fixed as herein provided shall have been paid for all past quarter-yearly
periods and shall have been declared and paid or provided for the then current
quarterly-yearly dividend period, but without interest on cumulative dividends,
no dividends shall be paid or declared and no other distribution shall be made
on any shares of any class of capital stock of the Corporation ranking junior to
the Preferred Stock, and no such shares ranking junior to the Preferred Stock
shall be purchased or otherwise acquired for value by the Corporation. The
holders of the Preferred Stock of any series shall not be entitled to receive
any dividends thereon other than the dividends referred to in this paragraph
"(2)" and in paragraph "(1)" of Part [A-3].
(3) The Corporation, by action of its Board of Directors, may redeem the
whole or any part of any series of the Preferred Stock, at any time or from time
to time, by paying in cash the redemption price of the shares of the particular
series fixed therefor as herein provided, together with a sum in the case of
each share of each series so to be redeemed, computed at the annual dividend
rate for the series of which the particular share is a part from the date from
which dividends on such share became cumulative to the date fixed for such
redemption, less the aggregate of the dividends theretofore or on such
redemption date paid thereon. Notice of each such redemption shall be given to
the holders of record of the shares to be redeemed. Each such notice shall be
given by mail and may be given in such other manner as may be prescribed by the
By-Laws or by resolution of the Board of Directors, at least thirty (30) days
and not more than ninety (90) days prior to the date fixed for such redemption.
Any notice to be given by mail shall be deemed given when mailed to the holders
of the shares of stock being redeemed of record at the time of mailing, at their
respective addresses as the same shall then appear on the books of the
Corporation; but in the case of notice by mail, no accidental failure to mail
such notice to any one or more such holders shall affect the validity of the
redemption of any shares of the Preferred Stock so to be redeemed. In case of
the redemption of a part only of any series of the Preferred Stock at the time
outstanding, the Corporation shall select, pro rata or by lot, as and in such
manner as the Board of Directors may determine, the shares so to be redeemed.
The Board of Directors shall have full power and authority, subject to the
limitations and provisions herein contained, to prescribe the manner in which,
and the terms and conditions upon which, the shares of the Preferred Stock shall
be redeemed from time to time. If notice of redemption shall have been given,
and if on or before the redemption date specified in such notice all funds
necessary for such redemption (including any dividend payable on such redemption
date) shall have been set aside by the Corporation, separate and apart from its
other funds, in trust for the account of the holders of the shares to be
redeemed, so as to be and continue to be available therefor, then,
notwithstanding that any certificate for such shares so called for redemption
shall not have been surrendered for cancellation, from and after the date fixed
for redemption, the shares represented thereby shall no longer be deemed
outstanding, the right to receive dividends thereon shall cease to accrue and
all rights with respect to such shares so called for redemption shall forthwith
on such redemption date cease and terminate, except only the right of the
holders thereof to receive, out of the funds so set aside in trust, the amount
payable upon redemption thereof, without interest, and except such conversion
privileges, if any, as may be exercisable after the redemption date; provided,
however, that the Corporation may, after giving notice of any such redemption as
hereinbefore provided or after giving to the bank or trust company hereinafter
referred to irrevocable
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authorization to give such notice, and, at any time prior to the redemption date
specified in such notice, deposit in trust, for the account of the holders of
the shares to be redeemed, all funds necessary for such redemption (including
any dividend payable on such redemption date) with a bank or trust company in
good standing, organized under the laws of the United States of America or of
the State of New York doing business in the Borough of Manhattan, The City of
New York, having capital, surplus and undivided profits aggregating at least
$2,000,000, designated in such notice of redemption, and, upon such deposit in
trust, all shares with respect to which such deposit shall have been made shall
no longer be deemed to be outstanding, and all rights with respect to such
shares shall forthwith cease and terminate, except only the right of the holders
thereof to receive, out of the funds so deposited in trust, from and after the
date of such deposit, the amount payable upon the redemption thereof, without
interest, and except such conversion privileges, if any, as may be exercisable
after the date of such deposit. The holders of any such Preferred Stock shall
not be entitled to any interest allowed by such bank or trust company on funds
so deposited, but any such interest shall be paid to the Corporation. In case
the conversion privilege of any share of Preferred Stock of a series having
conversion privileges is exercised after funds necessary for the redemption
thereof shall have been set apart or deposited in trust as above provided, then
out of the funds so set apart or deposited in respect of such share an amount
equal to the redemption price thereof, together with an amount equal to accrued
dividends on such share from the date of conversion to the redemption date,
shall, upon such exercise, revert or be repaid to the Corporation free and clear
of any such trust, and the remainder of such funds so set apart or deposited in
respect of such share shall be paid to the holder of such share upon such
conversion. Nothing herein contained shall limit any legal right of the
Corporation to purchase or otherwise acquire any shares of the Preferred Stock.
(4) Before any amount shall be paid to, or any assets distributed among,
the holders of shares of any class of stock ranking junior to the Preferred
Stock, upon any liquidation, dissolution or winding up of the Corporation, and
after paying or providing for the payment of all creditors of the Corporation,
the holders of each series of the Preferred Stock at the time outstanding shall
be entitled to be paid in cash the amount for the particular series fixed
therefor as herein provided, together with a sum in the case of each such share
of each series, computed at the annual dividend rate for the series of which the
particular share is apart, from the date from which dividends on such share
became cumulative to the date fixed for the payment of such distributive amount,
less the aggregate of the dividends theretofore or on such date paid thereon.
The holders of the Preferred Stock of any series shall not be entitled to
receive any amounts with respect thereto upon any liquidation, dissolution or
winding up of the Corporation other than the amounts referred to in this
paragraph and in paragraph "(2)" of Part [A-3]. Neither the consolidation or
merger of the Corporation with any other corporation or corporations, nor the
sale or transfer by the Corporation of all or any part of its assets, shall be
deemed to be a liquidation, dissolution or winding up of the Corporation.
[A-2] No Par Preferred Stock. The No Par Preferred Stock shall rank pari
passu with the Preferred Stock referred to in Parts [A-1] and [A-3] through
[A-5]of this Article 5 in right of payment of dividends and upon liquidation,
dissolution or winding up of the Corporation, as set forth in Part [A-3] of this
Article 5. Accordingly, certain preferences and privileges set forth in this
Part [A-2] with respect to the No Par Preferred Stock are subject to the further
limitations referred to in Parts [A-1] and [A-3] through [A-5] of this Article 5
to which reference is hereby made.
(1) The shares of No Par Preferred Stock may be issued from time to time in
one or more series. All shares of No Par Preferred Stock of all series shall
rank equally and be identical in all respects except that the Board of Directors
is authorized to fix the number of shares in each series, the designation
thereof and, subject to the provisions of this Article 5, the relative rights,
preferences and limitations of each series and the variations in such rights,
preferences and limitations as between series and specifically is authorized to
fix with respect to each series:
(a) the dividend rate on the shares of such series and the date or
dates from which dividends shall be cumulative;
(b) the times when, the prices at which, and all other terms and
conditions upon which, shares of such series shall be redeemable;
(c) the amounts which the holders of shares of such series shall be
entitled to receive upon the liquidation, dissolution or winding up of the
Corporation, which amounts may vary depending on whether
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such liquidation, dissolution or winding up is voluntary or involuntary
and, if voluntary, may vary at different dates; provided, however, that the
amount or amounts per share payable to the holder of any No Par Preferred
Stock upon any involuntary liquidation, dissolution or winding up of the
Corporation shall not be fixed at more than One Hundred Dollars ($100) per
share;
(d) whether or not the shares of such series shall be subject to the
operation of a purchase, retirement or sinking fund and, if so, the extent
to and manner in which such purchase, retirement or sinking fund shall be
applied to the purchase or redemption of the shares of such series for
retirement or for other corporate purposes and the terms and provisions
relative to the operation of the said fund or funds;
(e) whether or not the shares of such series shall be convertible into
or exchangeable for shares of any other class or series and, if so, the
price or prices or the rate or rates of conversion or exchange and the
method, if any, of adjusting the same;
(f) the restrictions, if any, upon the payment of dividends or making
of other distributions on, and upon the purchase or other acquisition of,
shares of Common Stock;
(g) the restrictions, if any, upon the creation of indebtedness, and
the restrictions, if any, upon the issue of any additional shares ranking
on a parity with or prior to the shares of such series in addition to the
restrictions provided for in this Article 5;
(h) the voting powers, if any, of the shares of such series in
addition to the voting powers provided for in this Article 5; provided,
however, that no holder of shares of No Par Preferred Stock shall be
entitled to more than one vote for each $50 which would be payable to him
with respect to such shares upon any involuntary liquidation, dissolution
or winding up of the Corporation; and
(i) such other rights, preferences and limitations as shall not be
inconsistent with this Article 5.
(2) All shares of any particular series shall rank equally and be identical
in all respects except that shares of any one series issued at different times
may differ as to the date from which dividends shall be cumulative.
(3) Dividends on shares of No Par Preferred Stock of each series shall be
cumulative from the date or dates fixed with respect to such series and shall be
paid or declared or set apart for payment for all past dividend periods and for
the current dividend period before any dividends (other than dividends payable
in shares of Common Stock) shall be declared or paid or set apart for payment on
shares of capital stock ranking junior to the No Par Preferred Stock. Whenever,
at any time, full cumulative dividends for all past dividend periods and for the
current dividend period shall have been paid or declared and set apart for
payment on all then outstanding shares of No Par Preferred Stock and all
requirements with respect to any purchase, retirement or sinking fund or funds
for all series of shares of No Par Preferred Stock shall have been complied
with, the Board of Directors (subject to the provisions of paragraph "(2)" of
Part [A-1]) may declare dividends on shares of capital stock ranking junior to
the No Par Preferred Stock and the shares of No Par Preferred Stock shall not be
entitled to share therein.
(4) Upon any liquidation, dissolution or winding up of the Corporation, the
holders of shares of No Par Preferred Stock of each series shall be entitled to
receive the amounts to which such holders are entitled as fixed with respect to
such series, including all dividends accumulated to the date of final
distribution, before any payment or distribution of assets of the Corporation
shall be made to or set apart for the holders of shares of capital stock ranking
junior to the No Par Preferred Stock and after such payments shall have been
made in full to the holders of shares of No Par Preferred Stock, the holders of
shares of capital stock ranking junior to the No Par Preferred Stock shall be
entitled to receive (subject to the provisions of paragraph "(4)" of Part [A-1])
any and all assets remaining to be paid or distributed to shareholders and the
holders of shares of No Par Preferred Stock shall not be entitled to share
therein. For the purposes of this paragraph, the voluntary sale, conveyance,
lease, exchange or transfer of all or substantially all the property or assets
of the Corporation or a consolidation or merger of the Corporation with one or
more other corporations (whether or not the Corporation is the corporation
surviving such consolidation or merger) shall not be deemed to be a liquidation,
dissolution or winding up, voluntary or involuntary.
(5) To the extent that any shares of any series of No Par Preferred Stock
are hereafter caused to be issued by the Board of Directors of the Corporation
and by the terms of any such series the shares of such
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series are made convertible into shares of Common Stock, Preferred Stock, or
other series of No Par Preferred Stock of the Corporation, the Board of
Directors may, by certificate of amendment under the New York Business
Corporation Law and in accordance with the provisions of such Law, increase the
authorized shares of any such classes or series to such number as will be
sufficient, when added to the previously authorized but unissued shares of such
class or series, to satisfy the conversion privileges of any such share of No
Par Preferred Stock.
[A-3] Additional Provisions Applicable to Both Preferred Stock and No Par
Preferred Stock.
(1) All shares of every series of Preferred Stock and No Par Preferred
Stock shall be of equal rank, preference and priority as to dividends
irrespective of whether or not the rates of dividends to which the same shall be
entitled shall be the same, and no dividends shall be declared on any series of
Preferred Stock or No Par Preferred Stock in respect of any quarter-yearly
dividend period unless there shall likewise be declared on all shares of all
series of the Preferred Stock and the No Par Preferred Stock at the time
outstanding, like proportionate dividends, ratably, in proportion to the
respective annual dividend rates fixed therefor, in respect of the same
quarter-yearly dividend period, to the extent that such shares are entitled to
receive dividends for such quarter-yearly dividend period.
(2) All shares of every series of Preferred Stock and No Par Preferred
Stock shall be of equal rank, preference and priority as to the net assets of
the Corporation of the proceeds thereof to which the same shall be entitled the
liquidation, dissolution or winding up of the Corporation and no payments on
account of the distributive amounts relating thereto shall be made to the
holders of any series of Preferred Stock or No Par Preferred Stock unless there
shall likewise be paid at the same time to the holders of each other series of
Preferred Stock and No Par Preferred Stock at the time outstanding like
proportionate distributive amounts, ratably, in proportion to the full
distributive amounts to which they are respectively entitled as herein provided.
(3) If in any case the amounts payable with respect to any requirements to
retire shares of Preferred Stock and No Par Preferred Stock are not paid in full
in the case of all series with respect to which such requirements exist, the
number of shares to be retired in each series of each such class shall be in
proportion to the respective amounts which would be payable on account of such
requirements if all amounts payable were paid in full.
[A-4] Common Stock. The following provisions are applicable to the Common
Stock.
(1) Whenever the full dividends on all series of Preferred Stock and No Par
Preferred Stock and on all other capital stock ranking senior to the Common
Stock at the time outstanding for all past quarter-yearly dividend periods and
for the then current quarter-yearly dividend period shall have been paid or
declared and set apart for payment, then such dividends (payable in cash, stock
or otherwise) as may be determined by the Board of Directors may be declared and
paid on the Common Stock, but only out of funds legally available for the
payment of dividends; provided, however, that, so long as any shares of the
Preferred Stock shall be outstanding, the Corporation shall not pay any
dividends (other than dividends payable in shares of the Common Stock) upon, or
make any other distribution upon, or make any payment in the purchase or
redemption of, any shares of any class of stock of the Corporation ranking
junior to the Preferred Stock, unless, immediately after such dividend payment,
distribution, or payment in purchase or redemption (herein referred to as
Restricted Payments), both of the following conditions shall obtain:
(a) The aggregate amounts of all such Restricted Payments made by the
Corporation subsequent to December 31, 1939, which have been charged to any
account other than earned surplus will not exceed $2,000,000; and
(b) The amount of the surplus of the Corporation (whether earned
surplus or paid-in surplus or otherwise) remaining legally available for
the payment of dividends shall be at least equal to three years' dividend
requirements on all then outstanding shares of Preferred Stock.
(2) In the event of any liquidation, dissolution or winding up of the
Corporation, all assets and funds of the Corporation remaining after paying or
providing for the payment of all creditors of the Corporation and after paying
or providing for the payment to the holders of shares of all series of Preferred
Stock and No Par Preferred Stock and all other capital stock ranking senior to
the Common Stock of the full distributive
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amounts to which they are respectively entitled as herein provided, shall be
divided among and paid to the holders of the Common Stock according to their
respective rights and interests.
[A-5] General Provisions. The following provisions are applicable to one
or more classes of the Corporation's capital stock, as indicated in each case.
(1) No holder of stock of any class of the Corporation shall have any
right, as such holder, to purchase or subscribe for any stock of any class or
any obligations convertible into, or any right or option to purchase, stock of
any class which the Corporation may at any time issue or sell, but any and all
such stock, obligations, rights, and/or options may be issued and disposed of by
the Board of Directors to such persons, firms and corporations, and for such
lawful consideration and on such terms as the Board of Directors, in its
discretion, may determine, without first offering the same or any thereof to the
stockholders or any class of stockholders.
(2) (A) Except as otherwise provided in this paragraph "(2)", each
stockholder of record shall be entitled to one vote for every share of Preferred
Stock and to one vote for every share of Common Stock standing in his name on
the stock books of the Corporation on the date for the determination of
stockholders entitled to vote. Each holder of record of shares of each series of
No Par Preferred Stock shall have such voting rights, if any, as shall be
specified by the Board of Directors in the resolutions creating such series,
except that no such holder shall be entitled to more than one vote for each $50
which would be payable to him with respect to such shares upon any involuntary
liquidation, dissolution or winding up of the Corporation; and provided,
further, that in any election of Directors provided for in this paragraph "(2)"
and in any vote on any of the matters referred to in part "(H)" hereof, each
such holder shall be entitled to one vote per share for each $50 which would be
payable to him upon any such liquidation, dissolution or winding up.
(B) If and when dividends payable on the Preferred Stock and No Par
Preferred Stock shall be in default in an amount equivalent to four (4)
quarter-yearly dividends on all shares of all series of the Preferred Stock and
No Par Preferred Stock at the time outstanding, the number of Directors of the
Corporation shall thereupon, and until all dividends in default on the Preferred
Stock and No Par Preferred Stock shall have been paid, be two more than the full
number constituting the Board of Directors immediately prior to such default,
and until such dividends shall have been paid as aforesaid, the holders of all
shares of the Preferred Stock and No Par Preferred Stock, voting together as one
class, shall be entitled to elect two members of the Board of Directors and the
holders of the Common Stock, voting separately as a class, shall be entitled to
elect the remaining Directors of the Corporation.
(C) If and when all dividends then in default on the Preferred Stock and No
Par Preferred Stock at the time outstanding shall be paid (and such dividends
shall be declared and paid out of any funds legally available therefor as soon
as reasonably practicable), the Preferred Stock and No Par Preferred Stock shall
thereupon be divested of any special right with respect to the election of
Directors provided in part "(B)" hereof, the voting power of the Preferred
Stock, the No Par Preferred Stock and the Common Stock shall revert to the
status existing before the occurrence of such default, and the number of
Directors of the Corporation shall be reduced by two; but always subject to the
same provisions for vesting such special rights in the Preferred Stock and No
Par Preferred Stock in case of further like default or defaults in dividends
thereon. Upon the termination of any such special right upon payment of all
accumulated and defaulted dividends on such stock, the terms of office of all
persons who may have been elected Directors of the Corporation by vote of the
Holders of the Preferred Stock and the No Par Preferred Stock, as a class,
pursuant to such special right shall forthwith terminate.
(D) In case of any vacancy in the Board of Directors occurring among the
Directors elected by the holders of the Preferred Stock and the No Par Preferred
Stock, as a class, pursuant to part "(B)" hereof, the holders of the Preferred
Stock and No Par Preferred Stock then outstanding and entitled to vote may elect
a successor to hold office for the unexpired term of the Director whose place
shall be vacant. In all other cases, any vacancy occurring among the Directors
shall be filled by the vote of a majority of the remaining Directors.
(E) Whenever the holders of the Preferred Stock and the No Par Preferred
Stock, as a class, become entitled to elect Directors of the Corporation
pursuant to either part "(B)" or "D" hereof, a meeting of the holders of the
Preferred Stock and No Par Preferred Stock shall be held any time thereafter
upon call by the holders of not less than 1,000 shares of the Preferred Stock
and No Par Preferred Stock or upon call by the Secretary of the Corporation at
the request in writing of any holder of Preferred Stock or No Par Preferred
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Stock addressed to him or her at the principal office of the Corporation. At all
meetings of stockholders held for the purpose of electing Directors during such
times as the holders of shares of the Preferred Stock and No Par Preferred Stock
shall have the special right, voting together as one class, to elect Directors
pursuant to part "(B)" hereof, the presence in person or by proxy of the holders
of a majority of the outstanding shares of the Common Stock shall be required to
constitute a quorum of such class for the election of Directors, and the
presence in person or by proxy of the holders of a majority of the outstanding
shares of all series of the Preferred Stock and No Par Preferred Stock shall be
required to constitute a quorum of such class for the election of Directors;
provided, however, that the absence of a quorum of the holders of stock of
either the Preferred Stock and No Par Preferred Stock as a class or the Common
Stock shall not prevent the election at any such meeting or adjournment thereof
of Directors by the other such class if the necessary quorum of the holders of
stock of such other class is present in person or by proxy at such meeting; and
provided further that in the absence of a quorum of the holders of stock of
either such class, a majority of those holders of the stock of such class who
are present in person or by proxy shall have power to adjourn the election of
the Directors to be elected by such class from time to time without notice other
than announcement at the meeting until the holders of the requisite number of
shares of such class shall be present in person or by proxy.
(F) So long as any shares of the Preferred Stock or No Par Preferred Stock
of any series are outstanding, the By-Laws of the Corporation shall contain
provisions which, considering the minimum and maximum number of Directors
permitted by the Certificate of Incorporation or other certificate filed
pursuant to law, will at all times assure the increase in the number of
Directors provided for in part "(B)" of this paragraph "(2)" and the decrease in
such number provided for in part "(C)" of this paragraph "(2)", in each case at
the times and on the conditions there set forth and without the necessity in
either case of special action on the Part of the stockholders or the Directors
of the Corporation to effect such increase or decrease.
(G) So long as any shares of Preferred Stock are outstanding, the
Corporation shall not, without the written consent or the affirmative vote of
the holders of at least two-thirds of the total number of shares of Preferred
Stock then outstanding, authorize preferred stock having priority with respect
to the existing Preferred Stock or otherwise change the relative rights,
preferences or limitations of the class of Preferred Stock.
(H) So long as any shares of No Par Preferred Stock are outstanding, the
Corporation shall not (a) without the affirmative vote or consent of the holders
of at least two-thirds of all the shares of No Par Preferred Stock at the time
outstanding (i) authorize shares of stock ranking prior to the shares of No Par
Preferred Stock or (ii) change any provision of this Article 5 so as to affect
adversely the shares of No Par Preferred Stock; (b) without the affirmative vote
or consent of the holders of at least two-thirds of any series of shares of No
Par Preferred Stock at the time outstanding, change any of the provisions of
such series so as to affect adversely the shares of such series; (c) without the
affirmative vote or consent of the holders of at least a majority of all the
shares of No Par Preferred Stock at the time outstanding (except as otherwise
provided in this Article 5) (i) increase the authorized number of shares of No
Par Preferred Stock or (ii) authorize shares of any other class of stock ranking
on a parity with the shares of No Par Preferred Stock.
(3) The Corporation may, at any time and from time to time, issue and
dispose of any of the authorized and unissued shares of Preferred Stock, No Par
Preferred Stock and Common Stock for such consideration as may be fixed from
time to time by the Board of Directors, subject to any provisions of law then
applicable.
[B] THE RELATIVE RIGHTS, PREFERENCES, PRIVILEGES AND LIMITATIONS OF SERIES
A PARTICIPATING NO PAR PREFERRED STOCK ARE AS SET FORTH BELOW.
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Participating No Par Preferred Stock", without par
value, and the number of shares constituting such series shall be 700,000. Such
number of shares may be increased or decreased by resolution of the Board of
Directors; provided that no decrease shall reduce the number of shares of Series
A Participating No Par Preferred Stock to a number less than that of the shares
then outstanding plus the number of shares issuable upon exercise of outstanding
rights, options or warrants or upon conversion of outstanding securities issued
by the Corporation.
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Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any
shares of capital stock of the Corporation ranking prior and superior to
the shares of Series A Participating No Par Preferred Stock with respect to
dividends, the holders of shares of Series A Participating No Par Preferred
Stock, in preference to the holders of shares of Common Stock and any other
junior stock, shall be entitled to receive, when, as and if declared by the
Board of Directors of the Corporation out of funds legally available for
the purpose, quarterly dividends payable in cash on the first day of
January, April, July, and October in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the first issuance of a
share or fraction of a share of Series A Participating No Par Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the
greater of (a) $10.00, or (b) subject to the provision for adjustment
hereinafter set forth, 1,000 times the aggregate per share amount of all
cash dividends, and 1,000 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions other than a
dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock, since the immediately preceding Quarterly
Dividend Payment Date, or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share
of Series A Participating No Par Preferred Stock. In the event the
Corporation shall at any time after December 7, 1989 (the "Rights
Declaration Date") (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or
(iii) combine the outstanding Common Stock into a smaller number of shares,
then, in each such case, the amount to which holders of shares of Series A
Participating No Par Preferred Stock were entitled immediately prior to
such event under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event, and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Participating No Par Preferred Stock, as provided in paragraph (A)
above immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $10.00 per share on the Series A Participating No Par
Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Participating No Par Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of
Series A Participating No Par Preferred Stock unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend
Payment Date in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Participating No Par
Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series A Participating No Par Preferred
Stock in an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The
Board of Directors may fix a record date for the determination of holders
of shares of Series A Participating No Par Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which
record date shall be no more than 30 days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Participating
No Par Preferred Stock shall have the following voting rights:
(A) Each share of Series A Participating No Par Preferred Stock shall
entitle the holder thereof to 2 votes on all matters submitted to a vote of
the shareholders of the Corporation.
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(B) Except as otherwise provided herein, in the Restated Certificate
or by law, the holders of shares of Series A Participating No Par Preferred
Stock and the holders of shares of Common Stock shall vote together as one
class on all matters submitted to a vote of shareholders of the
Corporation.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Participating No Par Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of Series A
Participating No Par Preferred Stock outstanding shall have been paid in
full, the Corporation shall not
(i) declare or pay dividends on, make any other distributions on,
or redeem or purchase or otherwise acquire for consideration any shares
of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Participating No Par
Preferred Stock;
(ii) declare or pay dividends on or make any other distributions on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Participating
No Par Preferred Stock, except dividends paid ratably on the Series A
Participating No Par Preferred Stock, and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts
to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Participating
No Par Preferred Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation or winding up)
to the Series A Participating No Par Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of
Series A Participating No Par Preferred Stock, or any shares of stock
ranking on a parity with the Series A Participating No Par Preferred
Stock, except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors of the Corporation)
to all holders of such shares upon such terms as the Board of Directors
of the Corporation, after consideration of the respective annual
dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will result
in fair and equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of
the Corporation unless the Corporation could, under paragraph (A) of this
Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares. Any shares of Series A Participating No Par
Preferred Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued shares of preferred stock, without par value, of the Corporation and
may be reissued as part of a new series of preferred stock, without par value,
of the Corporation to be created by resolution or resolutions of the Board of
Directors of the Corporation, subject to the conditions and restrictions on
issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation, dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Participating No Par Preferred
Stock unless, prior thereto, the holders of shares of Series A
Participating No Par Preferred Stock shall have received per share (i) in
the case of any involuntary liquidation, dissolution or winding up of the
Corporation, $100 (the "Involuntary Liquidation Preference"), or (ii) in
the case of any voluntary liquidation, dissolution or winding up of the
Corporation, the greater of 1,000 times the exercise price per Right and
1,000 times the payment made per share of Common Stock, plus an amount
equal to accrued and unpaid dividends and distributions thereon, whether or
not declared, to the date of such payment (the "Voluntary Liquidation
Preference").
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Following the payment of the full amount of the Voluntary Liquidation
Preference or the Involuntary Liquidation Preference, as the case may be,
no additional distributions shall be made to the holders of shares of
Series A Participating No Par Preferred Stock.
(B) In the event there are not sufficient assets available to permit
payment in full of the Liquidation Preference and the liquidation
preferences of all other series or classes of preferred stock of the
Corporation, if any, which rank on a parity with the Series A Participating
No Par Preferred Stock, then such remaining assets shall be distributed
ratably to the holders of such parity shares in proportion to their
respective liquidation preferences.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares
of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a small number of shares, then in
each such case the amount to which holders of shares of Series A
Participating No Par Preferred Stock were entitled immediately prior to
such event under clause (ii) of Section 6(A) hereof shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event, and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Series A Participating No Par Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject to the provision
for adjustment hereinafter set forth) equal to 1,000 times the aggregate amount
of stock, securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series A Participating No Par Preferred Stock shall be
adjusted by multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event, and
the denominator of which is the number of shares of Common Stock that are
outstanding immediately prior to such event.
Section 8. Redemption. The shares of Series A Participating No Par
Preferred Stock shall not be redeemable.
Section 9. Amendment. This Certificate shall not be further amended in
any manner which would materially alter or change the powers, preferences or
special rights of the Series A Participating No Par Preferred Stock so as to
affect them adversely without the affirmative vote of the holders of two-thirds
or more of the outstanding shares of Series A Participating No Par Preferred
Stock voting separately as a class.
Section 10. Fractional Shares. Series A Participating No Par Preferred
Stock may be issued in fractions of a share, which shall entitle the holder, in
proportion to such holders of fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Series A Participating No Par Preferred Stock.
6. The Secretary of State of the State of New York is designated as the
agent of the Corporation upon whom process against it may be served, and the
post office address to which the Secretary of State shall mail a copy of any
process against the Corporation served upon him is One Stamford Forum, Stamford,
Connecticut 06904.
7. The duration of the Corporation shall be perpetual.
8. A. The number of directors of the Corporation which shall constitute
the entire Board of Directors shall be fixed from time to time by the vote of a
majority of the entire Board of Directors, but such number shall in no case be
less than nine nor more than twenty-one. Any such determination made by the
Board of Directors shall continue in effect unless and until changed by the
Board of Directors, but no such changes shall affect the term of any director
then in office. Upon the adoption of this Article 8, the directors shall be
divided
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into three classes (I, II and III), as nearly equal in number as possible, and
no class shall include less than three directors. The initial term of office for
members of Class I shall expire at the annual meeting of stockholders in April
1987; the initial term of office for members of Class II shall expire at the
annual meeting of stockholders in April 1988; and the initial term of office for
members of Class III shall expire at the annual meeting of stockholders in April
1989. At each annual meeting of stockholders following such initial
classification and election, directors elected to succeed those directors whose
terms expire shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders after their election, and shall
continue to hold office until their respective successors are elected and
qualified. In the event of any increase in the number of directors fixed by the
Board of Directors, the additional directors shall be so classified that all
classes of Directors have as nearly equal numbers of Directors as may be
possible. In the event of any decrease in the number of directors of the
Corporation, all classes of directors shall be decreased equally as nearly as
may be possible.
B. Newly created directorships resulting from any increase in the
authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or any other cause shall be filled only by the Board of Directors,
provided that a quorum is then in office and present, or only by a majority of
the directors then in office, if less than a quorum is then in office, or by the
sole remaining director. Directors elected to fill a newly created directorship
or other vacancies shall hold office for the remainder of the full term of the
class of directors in which the new directorship was created or the vacancy
occurred and until such director's successor has been elected and has qualified.
The directors of any class of directors of the Corporation may be removed by the
stockholders only for cause by the affirmative vote of the holders of at least a
majority of the voting power of all outstanding voting stock.
C. The By-Laws or any By-Law of the Corporation may be adopted, amended or
repealed only by the affirmative vote of not less than a majority of the
directors then in office at any regular or special meeting of directors, or by
the affirmative vote of the holders of at least eighty percent (80%) of the
voting power of all outstanding voting stock at any annual meeting or any
special meeting called for that purpose.
D. Notwithstanding any other provisions of this Certificate or the By-Laws
of the Corporation (and notwithstanding the fact that a lesser percentage or
separate class vote may be specified by law, this Certificate, the By-Laws of
the Corporation or otherwise), the affirmative vote of the holders of at least
eighty percent (80%) of the voting power of all outstanding voting stock shall
be required to adopt any provision inconsistent with, or to amend or repeal,
Paragraphs A to D of this Article 8.
E. Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of preferred stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Certificate applicable thereto, and such directors so elected
shall not be divided into classes pursuant to this Article 8 unless expressly
provided by such terms.
9. The Board of Directors shall have power, if the By-Laws so provide, to
hold meetings outside as well as within the State of New York.
10. So far as permitted by law, the Board of Directors shall have power
also to determine from time to time whether and to what extent and at what times
and places and under what conditions and regulations the books, documents and
accounts of this Corporation, or any of them shall be open to the inspection of
stockholders; and no stockholder shall have any right to inspect any books,
documents or accounts of this Corporation, except as conferred by statute or the
By-Laws, or authorized by resolution of the stockholders or the Board of
Directors.
11. A. HIGHER VOTE FOR CERTAIN BUSINESS COMBINATIONS. In addition to any
affirmative vote of holders of a class or series of capital stock of the
Corporation required by law or this Certificate, and except as otherwise
expressly provided in Paragraph B of this Article 11, the Corporation shall not
engage, directly or indirectly, in a Business Combination (as hereinafter
defined) with, or proposed by or on behalf of, a Related Person (as hereinafter
defined) or an Affiliate or Associate (both as hereinafter defined) of a Related
Person without the affirmative vote of the holders of at least eighty percent
(80%) of the voting power of all outstanding voting stock of the Corporation,
voting together as a single class.
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B. WHEN HIGHER VOTE IS NOT REQUIRED. The provisions of Paragraph A of
this Article 11 shall not be applicable to a particular Business Combination,
and such Business Combination shall require only such affirmative vote, if any,
as is required by law or any other provision of this Certificate, the By-Laws of
the Corporation or otherwise, if all of the conditions specified in any one of
the following Paragraphs (1), (2) or (3) are met:
(1) Approval by Directors. The Business Combination has been
approved by a vote of a majority of all the Continuing Directors (as
hereinafter defined); or
(2) Combination with Subsidiary. The Business Combination is solely
between the Corporation and a subsidiary of the Corporation and such
Business Combination does not have the direct or indirect effect set forth
in Paragraph C(2) (e) of this Article 11; or
(3) Price and Procedural Conditions. All of the following conditions
have been met:
(a) The aggregate amount of (x) cash and (y) fair market value (as
of the date of the consummation of the Business Combination) of
consideration other than cash, to be received per share of Common Stock,
Preferred Stock, No Par Preferred Stock or any other class or series of
preferred stock of the Corporation (any such class or series of
preferred stock being referred to herein as "preferred stock"), in such
Business Combination by holders thereof shall be at least equal to the
highest per share price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by or on behalf of the Related
Person for any shares of such class or series of stock acquired by it;
provided, however, that if the highest preferential amount per share of
a series of preferred stock to which the holders thereof would be
entitled in the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the affairs of the Corporation (regardless
of whether the Business Combination to be consummated constitutes such
an event) is greater than such aggregate amount, holders of such series
of preferred stock shall receive an amount for each such share at least
equal to the highest preferential amount applicable to such series of
preferred stock. The provisions of this Paragraph B(3) shall be required
to be met with respect to every class or series of preferred stock,
whether or not the the Related Person has previously acquired beneficial
ownership of any shares of a particular class or series of preferred
stock.
(b) The consideration to be received by holders of a particular
class or series of outstanding Common Stock or preferred stock shall be
in cash or in the same form as the Related Person has previously paid
for shares of such class or series of stock. If the Related Person has
paid for shares of any class or series of stock with varying forms of
consideration, the form of consideration given for such class or series
of stock in the Business Combination shall be either cash or the form
used to acquire the largest number of shares of such class or series of
stock previously acquired by it. The prices determined in accordance
with Paragraph B(3)(a) above shall be subject to an appropriate
adjustment in the event of any stock dividend, stock split, subdivision,
combination of shares or similar event.
(c) No Extraordinary Event (as hereinafter defined) occurs after
the Related Person has become a Related Person and prior to the
consummation of the Business Combination.
(d) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (or any subsequent provisions replacing such Act,
rules or regulations) is mailed to public stockholders of the
Corporation at least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information statement is
required pursuant to such Act or subsequent provisions).
C. CERTAIN DEFINITIONS. For purposes of this Article 11:
(1) A person shall mean any individual, firm, corporation or other
entity, or a group of "persons" acting or agreeing to act together in the
manner set forth in Rule 13d-5 under the Securities Exchange Act of 1934,
as in effect on November 1, 1986.
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(2) The term Business Combination shall mean any of the following
transactions, when entered into by the Corporation or a subsidiary of the
Corporation with, or upon a proposal by or on behalf of, a Related Person:
(a) the merger or consolidation of the Corporation or any
subsidiary of the Corporation; or
(b) the sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one or a series of transactions) of any assets of the
Corporation or any subsidiary of the corporation having an aggregate
fair market value of $50,000,000 or more, except for sales of goods and
services made in the ordinary course of the Corporation's business,
consistent with past practice; or
(c) the issuance or transfer by the Corporation or any subsidiary
of the Corporation (in one or a series of transactions) of any
securities of the Corporation or that subsidiary, except proportionately
to all stockholders of the Corporation or such subsidiary; or
(d) the adoption of a plan or proposal for the liquidation or
dissolution of the Corporation; or
(e) the reclassification of securities (including a reverse stock
split), recapitalization, consolidation or any other transaction
(whether or not involving a Related Person) which has the direct or
indirect effect of increasing the voting power, whether or not then
exercisable, of a Related Person in any class or series of capital stock
of the Corporation or any subsidiary of the Corporation; or
(f) any agreement, contract or other arrangement providing directly
or indirectly for any of the foregoing.
(3) The term Related Person shall mean any person (other than the
Corporation, a subsidiary of the Corporation or any pension, profit
sharing, employee stock ownership or other employee benefit plan of the
Corporation or a subsidiary of the Corporation or any trustee of or
fiduciary with respect to any such plan acting in such capacity) who is the
direct or indirect beneficial owner (as defined in Rule 13d-3 and Rule
13d-5 under the Securities Exchange Act of 1934, as in effect on November
1, 1986) of more than ten percent (10%) of the outstanding capital stock of
the Corporation entitled to vote for the election of directors, and any
Affiliate or Associate of any such person.
(4) The term Continuing Director shall mean any member of the Board of
Directors who is not a Related Person, an Affiliate or Associate or
representative of a Related Person and who was a member of the Board of
Directors immediately prior to the time that the Related Person became a
Related Person, and any successor to a Continuing Director who is not a
Related Person or an Affiliate or Associate of a Related Person and is
recommended to succeed a Continuing Director by a majority of Continuing
Directors who are then members of the Board of Directors.
(5) Affiliate and Associate shall have the respective meanings
ascribed to such terms in Rule 12b-2 under the Securities Exchange Act of
1934, as in effect on November 1, 1986.
(6) The term Extraordinary Event shall mean, as to any Business
Combination and Related Person, any of the following events that is not
approved by a majority of all Continuing Directors:
(a) any failure to declare and pay at the regular date therefor any
full quarterly dividend (whether or not cumulative) on outstanding
preferred stock; or
(b) any reduction in the annual rate of dividends paid on the
Common Stock (except as necessary to reflect any stock split, stock
dividend or subdivision of the Common Stock); or
(c) any failure to increase the annual rate of dividends paid on
the Common Stock as necessary to reflect any reclassification (including
any reverse stock split), recapitalization, reorganization or any
similar transaction that has the effect of reducing the number of
outstanding shares of the Common Stock; or
(d) the receipt by the Related Person, after such Related Person
has become a Related Person, of a direct or indirect benefit (except
proportionately as a shareholder) from any loans, advances, guarantees,
pledges or other financial assistance or any tax credits or other tax
advantages provided by the Corporation or any subsidiary of the
Corporation, whether in anticipation of or in connection with the
Business Combination or otherwise; or
15
<PAGE> 16
(e) any increase in the number of shares of Common Stock or
preferred stock of which the Related Person is the beneficial owner,
except as part of the transaction that results in such Related Person
becoming a Related Person and except in a transaction that, after giving
effect thereto, would not result in any increase in the Related Person's
percentage beneficial ownership of any class or series of Common Stock
or preferred stock.
(7) A majority of all Continuing Directors shall have the power to
determine, on the basis of information known to them after reasonable
inquiry, all questions arising under this Article 11, including, without
limitation, the transactions that are Business Combinations, the persons
who are Related Persons, the time at which a Related Person became a
Related Person, whether a person is an Affiliate or Associate of another,
and the fair market value of any assets, securities or other property, and
any such determinations of such directors shall be conclusive and binding.
D. FIDUCIARY OBLIGATIONS OF RELATED PERSONS. Nothing contained in this
Article 11 shall be construed to relieve any Related Person from any fiduciary
obligation imposed by law.
E. FIDUCIARY OBLIGATIONS OF DIRECTORS. The fact that any Business
Combination complies with the provisions of Section B of this Article 11 shall
not be construed to impose any fiduciary duty, obligation or responsibility on
the Board of Directors, or any member thereof, to approve such business
combination or recommend its adoption or approval to the stockholders of the
Corporation, nor shall such compliance limit, prohibit or otherwise restrict in
any manner the Board of Directors, or any member thereof, with respect to
evaluations of or actions and responses taken with respect to such Business
Combination.
F. BOARD CONSIDERATION OF ALL RELEVANT FACTORS. The Board of Directors of
the Corporation, when evaluating any offer of another party to (a) make a tender
or exchange offer for any equity security of the Corporation, (b) merge or
consolidate the Corporation with another corporation, or (c) purchase or
otherwise acquire all or substantially all of the properties and assets of the
Corporation, may, in connection with the exercise of its judgment in determining
what is in the best interests of the Corporation and its stockholders, give due
consideration to (i) all relevant factors, including without limitation the
social, legal, environmental and economic effects on the employees, customers,
suppliers and other affected persons, firms and corporations and on the
communities and geographical areas in which the Corporation and its subsidiaries
operate or are located and on any of the businesses and properties of the
Corporation or any of its subsidiaries, as well as such other factors as the
directors deem relevant, and (ii) not only the consideration being offered in
relation to the then current market price for the Corporation's outstanding
shares of capital stock, but also in relation to the then current value of the
Corporation in a freely negotiated transaction and in relation to the Board of
Directors' estimate of the future value of the Corporation (including the
unrealized value of its properties and assets) as an independent going concern.
G. AMENDMENT, REPEAL, ETC. The affirmative vote of the holders of at
least eighty percent (80%) of the voting power of all outstanding voting stock
of the Corporation, voting together as a single class, shall be required in
order to amend, repeal or adopt any provision inconsistent with this Article 11.
12. In the absence of fraud, no contract or other transaction between this
Corporation and any individual, partnership or corporation shall be affected by
the fact that any director or officer of this Corporation may be interested in
such contract or transaction, whether by reason of being a party thereto or a
partner in, director or officer of, or in any other way connected with, such
partnership or corporation, if such contract or transaction shall be approved or
ratified by the affirmative vote of a majority of the directors present at a
meeting of the Board of Directors at which a quorum shall be present, provided,
however, that the interest of any director or officer in any such contract or
transaction shall be fully disclosed at such meeting and that a director who is
so interested may not be counted at any such meeting for the purpose of
determining the existence of a quorum to consider and vote upon any contract or
transaction in which he is so interested and that the vote of such a director
may not be counted at any such meeting for the purpose of determining the
existence of the affirmative vote of a majority of the directors as aforesaid in
favor of the approval or ratification of any contract or transaction in which he
is so interested.
No director or officer shall liable to account to this Corporation for any
profit realized by him from or through any such contract or transaction of this
Corporation by reason of his interest as aforesaid in such contract or
transaction if such contract or transaction shall be approved or ratified as
aforesaid.
16
<PAGE> 17
No contract or other transaction between this Corporation and any of its
subsidiaries shall in any case be void or voidable or otherwise affected because
of the fact that directors or officers of this Corporation are directors or
officers of such subsidiary, nor shall any such director or officer, because of
such relation, be deemed interested in such contract or other transaction under
any of the provisions of this Article 12, nor shall any such director be liable
to account because of such relation. For the purpose of this Article 12, the
term "subsidiary" shall mean any corporation, more than 50% of whose issued and
outstanding shares having ordinary voting power may at the time be owned by this
Corporation and/or by one or more subsidiaries as said term is herein defined.
13. No director or officer of this Corporation need be a stockholder
therein.
14. A. PREVENTION OF "GREENMAIL". Except as set forth in Paragraph B of
this Article 14, in addition to any affirmative vote of stockholders required by
law or this Certificate, any direct or indirect purchase or other acquisition by
the Corporation of any Equity Security (as hereinafter defined) of any class
from any Interested Person (as hereinafter defined) who has beneficially owned
such securities for less than two years prior to the date of such purchase or
any agreement in respect thereof shall require the affirmative vote of the
holders of at least a majority of the voting power of the then outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors (the "Voting Stock" ), excluding Voting Stock beneficially
owned by such Interested Person, voting together as a single class (it being
understood that for the purposes of this Article, each share of Voting Stock
shall have the number of votes granted to it pursuant to Article 5 of this
Certificate). Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage may be specified, by
law or any agreement with any national securities exchange, or otherwise.
B. WHEN A VOTE IS NOT REQUIRED. The provisions of Paragraph A of this
Article 14 shall not be applicable with respect to:
(1) any purchase or other acquisition of securities made as part of a
tender or exchange offer by the Corporation to purchase securities of the
same class made on the same terms to all holders of such securities and
complying with the applicable requirements of the Securities Exchange Act
of 1934 and the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations);
(2) any purchase or acquisition made pursuant to an open market
purchase program approved by a majority of the Continuing Directors (as
hereinafter defined); or
(3) any purchase or acquisition which is approved by a majority of the
Continuing Directors and which is made at no more than the Market Price, on
the date that the understanding between the Corporation and the Interested
Person is reached with respect to such purchase (whether or not such
purchase is made or a written agreement relating to such purchase is
executed on such date), of shares of the class of Equity Security to be
purchased.
C. CERTAIN DEFINITIONS. For the purposes of this Article 14:
(1) A Person shall mean any individual, firm corporation or other
entity, or a group of persons acting or agreeing to act together in the
manner set forth in Rule 13d-5 under the Securities Exchange Act of 1934,
as in effect on November 1, 1986.
(2) The term Interested Person shall mean any person (other than the
Corporation, a subsidiary of the Corporation or any pension, profit
sharing, employee stock ownership or other employee benefit plan of the
Corporation or a subsidiary of the Corporation or any trustee of or
fiduciary with respect to any such plan acting in such capacity) that is
the direct or indirect beneficial owner (as defined in Rule 13d-3 and Rule
13d-5 under the Securities Exchange Act of 1934, as in effect on November
1, 1986) of more than five percent (5%) of the Voting Stock, and any
Affiliate or Associate of any such person.
(3) The term Continuing Director shall mean any member of the Board of
Directors who is not an Interested Person, an Affiliate or Associate or
representative of an Interested Person and who was a member of the Board of
Directors immediately prior to the time that the Interested Person became
an Interested Person, and any successor to a Continuing Director who is not
an Interested Person or an
17
<PAGE> 18
Affiliate or Associate of an Interested Person and is recommended to
succeed a Continuing Director by a majority of Continuing Directors who are
then members of the Board of Directors.
(4) Affiliate and Associate shall have the respective meanings
ascribed to such terms in Rule 12b-2 under the Securities Exchange Act of
1934, as in effect on November 1, 1986.
(5) Market Price of shares of a class of Equity Security on any day
shall mean the highest sale price of shares of such class of Equity
Security on such day, or, if that day is not a trading day, on the trading
day immediately preceding such day, on the national securities exchange or
the NASDAQ National Market System on which such class of Equity Security is
traded.
(6) Equity Security shall mean any security described in Section
3(a)(11) of the Securities Exchange Act of 1934, as in effect on November
1, 1986, which is traded on a national securities exchange or the NASDAQ
National Market System.
15. A director of this Corporation shall not be personally liable to the
Corporation or its shareholders for damages, except to the extent such exemption
from liability is not permitted under the New York Business Corporation Law as
the same exists or may hereafter be amended. Any repeal or modification of this
Article or adoption of an inconsistent provision shall not adversely affect any
right or protection of a director of the Corporation in respect of any matter
occurring, or any cause of action, suit or claim that would accrue or arise
prior to such repeal, modification or adoption of an inconsistent provision.
16. Subject to Articles 8 and 11 of this Certificate, the Corporation
reserves the right to amend and alter this certificate or to amend, alter,
change, add to or repeal any provision contained herein, in the manner now or
hereafter prescribed by statute, and all rights conferred upon officers,
directors or stockholders are granted subject to this reservation.
17. All references in this certificate to "articles", "paragraphs" and
other subdivisions are to the corresponding articles, paragraphs and other
subdivisions of this certificate; and, unless the context otherwise requires,
the words "herein", "hereof ", "hereby", "hereunder" and other equivalent words
refer to this certificate and not to any particular subdivision hereof.
18
<PAGE> 19
In this certificate, for all purposes hereof, unless there be something in
the subject or context inconsistent therewith,
(a) The term "security" means any share of stock, bond, debenture,
note, evidence of indebtedness, voting trust certificate, transferable
share however evidenced, and, in general, any instrument commonly known as
a "security", and any certificate of interest or participation in, scrip or
temporary or interim certificate for, receipt or certificate of deposit
for, and any warrant, right or option to subscribe for, purchase or
otherwise acquire, any of the foregoing; and
(b) The term "corporation" means any corporation, association, joint
stock company and similar organization.
The restatement of the Certificate of Incorporation provided for in Section
IV above was authorized by resolution of the Board of Directors of the
Corporation.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 9th
day of December 1996, and we affirm the statements contained herein are true
under the penalties of perjury.
CHARLES R. LEE
.............................................
CHARLES R. LEE
Chairman of the Board
and Chief Executive
Officer
MARIANNE DROST
.............................................
MARIANNE DROST
Secretary
19
<PAGE> 1
-----------------------------------------------------------------------------
GTE CORPORATION
AND
THE BANK OF NEW YORK
TRUSTEE
------------
INDENTURE
Dated as of December 1, 1996
------------
Securities
-----------------------------------------------------------------------------
<PAGE> 2
CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
Trust Indenture Act Section of
of 1939, as amended Indenture
<S> <C>
Section 310(a) ................................... 7.09
310(b) ................................... 7.08
7.10
310(c) ................................... Inapplicable
31l(a) ................................... 7.13(a)
31l(b) ................................... 7.13(b)
311(c) ................................... Inapplicable
312(a) ................................... 5.01
5.02(a)
312(b) ................................... 5.02(b)
312(c) ................................... 5.02(c)
313(a) ................................... 5.04(a)
313(b) ................................... 5.04(b)
313(c) ................................... 5.04(a)
5.04(b)
313(d) ................................... 5.04(c)
314(a) ................................... 5.03
314(b) ................................... Inapplicable
314(c) ................................... 13.06
314(d) ................................... Inapplicable
314(e) ................................... 13.06
314(f) ................................... Inapplicable
315(a) 7.01(a)
7.02
315(b) ................................... 6.07
315(c) ................................... 7.01
315(d) ................................... 7.01(b)
7.01(c)
315(e) ................................... 6.08
316(a) ................................... 6.06
8.04
316(b) ................................... 6.04
316(c) ................................... 8.01
317(a) ................................... 6.02
317(b) ................................... 4.04
318(a) ................................... 13.08
</TABLE>
<PAGE> 3
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
Page
<S> <C>
PARTIES...................................................... 1
RECITALS:
Purpose of Indenture................................... 1
Compliance with legal requirements..................... 1
Purpose of and consideration for Indenture............. 1
</TABLE>
ARTICLE ONE
DEFINITIONS
<TABLE>
<S> <C>
SECTION 1.01. Certain terms defined; other terms defined in
Trust Indenture Act of 1939, as amended or by
reference therein in Securities Act of 1933,
as amended, to have meanings therein assigned..... 2
Additional Amounts..................................... 2
Authenticating Agent................................... 2
Board of Directors..................................... 2
Board Resolution....................................... 2
Business Day........................................... 2
Certificate............................................ 3
Corporate Trust Office................................. 3
Corporation............................................ 3
Default................................................ 3
Depository............................................. 3
Dollar or $............................................ 3
Event of Default....................................... 3
Global Security........................................ 3
Governmental Obligations............................... 4
Indenture.............................................. 4
Interest Payment Date.................................. 4
Officers' Certificate.................................. 4
Opinion of Counsel..................................... 4
Outstanding............................................ 4
Predecessor Security................................... 5
Responsible Officer.................................... 5
Security or Securities................................. 5
Securityholder......................................... 5
Sinking Fund Payment................................... 6
Sinking Fund Payment Date.............................. 6
Sinking Fund Redemption Date........................... 6
Sinking Fund Redemption Price.......................... 6
Subsidiary............................................. 6
Trustee................................................ 6
Trust Indenture Act of 1939, as amended................ 7
</TABLE>
* This Table of Contents does not constitute part of the Indenture and should
not have any bearing upon the interpretation of any of its terms and provisions.
<PAGE> 4
ii
<TABLE>
<CAPTION>
Page
ARTICLE TWO
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE
OF SECURITIES
<S> <C> <C>
SECTION 2.01. Designation, terms, amount, authentication
and delivery of Securities.................... 7
SECTION 2.02. Form of Securities and Trustee's
certificate................................... 9
SECTION 2.03. Date and denominations of Securities,
and provisions for payment of principal,
premium and interest.......................... 9
SECTION 2.04. Execution of Securities....................... 11
SECTION 2.05. Exchange of Securities........................ 11
Registration and transfer of
Securities.................................... 12
Securities to be accompanied by proper
instruments of transfer....................... 12
Charges upon exchange, transfer or
registration of Securities.................... 12
Restrictions on transfer or exchange
at time of redemption......................... 12
SECTION 2.06. Temporary Securities.......................... 13
SECTION 2.07. Mutilated, destroyed, lost or stolen
Securities.................................... 13
SECTION 2.08. Cancellation of surrendered
Securities.................................... 14
SECTION 2.09. Provisions of Indenture and Securities
for sole benefit of parties and
Securityholders............................... 14
SECTION 2.10. Appointment of Authenticating
Agent......................................... 14
SECTION 2.11. Securities Issuable in the Form of a
Global Security............................... 15
</TABLE>
<PAGE> 5
iii
<TABLE>
<CAPTION>
Page
ARTICLE THREE
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
<S> <C> <C>
SECTION 3.01. Redemption of Securities...................... 16
SECTION 3.02. Notice of redemption.......................... 16
Selection of Securities in case less
than all Securities to be redeemed............ 17
SECTION 3.03. When Securities called for redemption
become due and payable........................ 17
Receipt of new Security upon partial
payment....................................... 17
SECTION 3.04. Sinking Fund for Securities......... 18
SECTION 3.05. Notice to Trustee; Redemption of
Securities.................................... 18
SECTION 3.06. Right of Corporation to anticipate
Sinking Fund.................................. 19
SECTION 3.07. General redemption rights not
limited....................................... 19
ARTICLE FOUR
PARTICULAR COVENANTS OF THE CORPORATION
SECTION 4.01. Payment of principal of (and premium,
if any) and interest on Securities............ 20
SECTION 4.02. Maintenance of office or agency for
payment of Securities; designation of
office or agency for payment,
registration, transfer and exchange of
Securities.................................... 20
</TABLE>
<PAGE> 6
iv
<TABLE>
<CAPTION>
Page
<S> <C> <C>
SECTION 4.03. (a) Duties of paying agent................... 20
(b) Corporation as paying agent.............. 21
(c) Holding sums in trust.................... 21
SECTION 4.04. Appointment to fill vacancy in office
of Trustee.................................... 21
SECTION 4.05. Covenant against certain prior
liens......................................... 21
SECTION 4.06. Restriction on consolidation, merger
or sale....................................... 22
ARTICLE FIVE
SECURITYHOLDERS' LISTS AND REPORTS BY THE CORPORATION
AND THE TRUSTEE
SECTION 5.01. Corporation to furnish Trustee
information as to names and addresses
of Securityholders............................ 22
SECTION 5.02. (a) Trustee to preserve information as
to names and addresses of
Securityholders received by it in
capacity of paying agent................. 23
Trustee may destroy list of
Securityholders on certain
conditions............................... 23
(b) Trustee to make information as to
names and addresses of Security-
holders available to "applicants"
or mail communications to
Securityholders in certain
circumstances............................ 23
Procedure if Trustee elects not
to make information available to
applicants............................... 23
</TABLE>
<PAGE> 7
v
<TABLE>
<CAPTION>
Page
<S> <C> <C>
(c) Corporation and Trustee not
accountable for disclosure of
information.............................. 24
SECTION 5.03. (a) Annual and other reports to be
filed by Corporation with
Trustee.................................. 24
(b) Additional information and
reports to be filed with Trustee
and Securities and Exchange
Commission............................... 24
(c) Summaries of information and
reports to be transmitted
by Corporation to
Securityholders.......................... 24
(d) Annual Certificate to be furnished
to the Trustee........................... 24
SECTION 5.04. (a) Trustee to transmit annual report
to Securityholders....................... 25
(b) Trustee to transmit certain further
reports to Securityholders............... 26
(c) Copies of reports to be filed with
stock exchanges and Securities
and Exchange Commission.................. 26
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
UPON EVENT OF DEFAULT
SECTION 6.01. Events of Default defined..................... 26
Acceleration of maturity upon Event
of Default.................................... 27
Waiver of default and rescission of
declaration of maturity....................... 27
Restoration of former position and
rights upon curing default.................... 27
</TABLE>
<PAGE> 8
vi
<TABLE>
<CAPTION>
Page
<S> <C> <C>
SECTION 6.02. Covenant of Corporation to pay to
Trustee whole amount due on Securities
on default in payment of interest or
principal (and premium, if any)............... 28
Trustee may recover judgment for whole
amount due on Securities on failure of
Corporation to pay............................ 28
Filing of proof of claim by Trustee
in bankruptcy, reorganization or
receivership proceedings...................... 28
Rights of action and of asserting claims
may be enforced by Trustee without
possession of Securities...................... 29
SECTION 6.03. Application of moneys collected by
Trustee....................................... 29
SECTION 6.04. Limitation on suits by holders of
Securities.................................... 29
SECTION 6.05. Remedies cumulative........................... 30
Delay or omission in exercise of rights
not waiver of default......................... 30
SECTION 6.06. Rights of holders of majority in principal
amount of Securities to direct Trustee
and to waive defaults......................... 30
SECTION 6.07. Trustee to give notice of defaults known
to it, but may withhold in certain
circumstances................................. 31
SECTION 6.08. Requirements of an undertaking to pay
costs in certain suits under Indenture
or against Trustee............................ 31
</TABLE>
<PAGE> 9
vii
<TABLE>
<CAPTION>
Page
ARTICLE SEVEN
CONCERNING THE TRUSTEE
<S> <C> <C>
SECTION 7.01. Upon Event of Default occurring and
continuing, Trustee shall exercise
powers vested in it, and use same
degree of care and skill in their
exercise, as prudent individual
would use..................................... 32
Trustee not relieved from liability for
negligence or willful misconduct except as
provided in this Section ...................... 32
(a) Prior to Event of Default and after
the curing of all Events of Default
which may have occurred.................. 32
(1) Trustee not liable except for
performance of duties
specifically set forth................... 32
(2) In absence of bad faith,
Trustee may conclusively
rely on certificates or
opinions furnished it here-
under, subject to duty to
examine the same if specifically
required to be furnished to
it...................................... 32
(b) Trustee not liable for error of
judgment made in good faith by
responsible officer unless Trustee
negligent................................ 32
(c) Trustee not liable for action
or non-action in accordance
with direction of holders of
majority in principal amount of
Securities................................ 32
(d) Trustee need not expend own funds
without adequate indemnity................ 32
</TABLE>
<PAGE> 10
viii
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 7.02. Subject to provisions of Section 7.01:
(a) Trustee may rely on documents
believed genuine and properly
signed or presented...................... 33
(b) Sufficient evidence by certain
instruments provided for................. 33
(c) Trustee may consult with counsel
and act on advice or Opinion of
Counsel.................................. 33
(d) Trustee may require indemnity from
Securityholders.......................... 33
(e) Trustee not liable for actions
in good faith believed to be
authorized............................... 33
(f) Prior to Event of Default Trustee
not bound to investigate facts or
matters stated in certificates, etc.,
unless requested in writing by
Securityholders.......................... 33
(g) Trustee may perform duties directly
or through agents or attorneys........... 34
SECTION 7.03. Trustee not liable for recitals in
Indenture or in Securities.................... 34
No representations by Trustee as to
validity of Indenture or of
Securities.................................... 34
Trustee not accountable for use of
Securities or proceeds........................ 34
SECTION 7.04. Trustee, paying agent or Security
registrar may own Securities.................. 34
SECTION 7.05. Moneys received by Trustee to be held in
trust without interest........................ 34
</TABLE>
<PAGE> 11
ix
<TABLE>
<CAPTION>
Page
<S> <C> <C>
SECTION 7.06. Trustee entitled to compensation,
reimbursement and indemnity................... 34
Obligations to Trustee to be secured
by lien prior to Securities................... 34
SECTION 7.07. Right of Trustee to rely on certificate
of officers of Corporation where no other
evidence specifically prescribed.............. 35
SECTION 7.08. (a) Trustee acquiring conflicting
interest to eliminate conflict or
resign................................... 35
(b) Notice to Securityholders in case
of failure to comply with
subsection (a)........................... 35
(c) Definition of conflicting
interest................................. 35
(d) Definition of certain terms.............. 39
(e) Calculation of percentages of
Securities............................... 40
(f) Trustee resignation not required
under certain circumstances.............. 41
SECTION 7.09. Requirements for eligibility of
Trustee....................................... 41
SECTION 7.10. (a) Resignation of Trustee and
appointment of successor................. 41
(b) Removal of Trustee by Corporation
or by court on Securityholders'
application.............................. 42
(c) Removal of Trustee by holders of
majority in principal amount of
Securities............................... 42
(d) Time when resignation or removal
of Trustee effective..................... 42
(e) One Trustee for each series.............. 42
</TABLE>
<PAGE> 12
x
<TABLE>
<CAPTION>
Page
<S> <C> <C>
SECTION 7.11. (a) Acceptance by successor to Trustee....... 42
(b) Trustee with respect to less than
all series............................... 43
(c) Corporation to confirm Trustee's
rights................................... 43
(d) Successor Trustee to be qualified........ 43
(e) Notice of succession..................... 44
SECTION 7.12. Successor to Trustee by merger,
consolidation or succession to
business...................................... 44
SECTION 7.13. (a) Limitations on rights of Trustee
as a creditor to obtain payment of
certain claims within four months
prior to default or during default,
or to realize on property as such
creditor thereafter....................... 44
(b) Certain creditor relationships
excluded.................................. 46
(c) Definition of certain terms............... 47
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Evidence of action by Securityholders......... 47
SECTION 8.02. Proof of execution of instruments
and of holding of Securities.................. 48
SECTION 8.03. Who may be deemed owners of
Securities.................................... 48
SECTION 8.04. Securities owned by Corporation or
controlled or controlling companies
disregarded for certain purposes.............. 49
SECTION 8.05. Instruments executed by Securityholders
bind future holders........................... 49
SECTION 8.06. Foreign Securities............................ 49
</TABLE>
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
<S> <C> <C>
SECTION 9.01. Purposes for which supplemental indenture
may be entered into without consent of
Securityholders............................... 50
SECTION 9.02. Modification of Indenture with consent of
Securityholders............................... 51
SECTION 9.03. Effect of supplemental indentures............. 51
SECTION 9.04. Securities may bear notation of changes
by supplemental indentures.................... 52
SECTION 9.05. Opinion of Counsel............................ 52
ARTICLE TEN
CONSOLIDATION, MERGER AND SALE
SECTION 10.01. Consolidations or mergers of Corporation
and sales or conveyances of property of
Corporation permitted........................ 52
Assumption of obligations of Corporation
by successor company or transferee........... 52
SECTION 10.02. Rights and duties of successor
corporation.................................. 52
Appropriate changes may be made in
phraseology and form of Securities........... 53
Corporation may consolidate or merge
into itself or acquire properties of
other corporations........................... 53
SECTION 10.03. Opinion of Counsel........................... 53
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<PAGE> 14
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ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
<S> <C> <C>
SECTION 11.01. Satisfaction and discharge of
Indenture.................................... 53
SECTION 11.02. Discharge of Corporation's
Obligations.................................. 54
SECTION 11.03. Application by Trustee of funds
deposited for payment of Securities........... 54
SECTION 11.04. Repayment of moneys held by paying
agent......................................... 54
SECTION 11.05. Repayment of moneys held by
Trustee....................................... 54
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Incorporators, stockholders, officers and
directors of Corporation exempt from
individual liability......................... 55
ARTICLE THIRTEEN
SUNDRY PROVISIONS
SECTION 13.01. Successors and assigns of Corporation
bound by Indenture........................... 55
SECTION 13.02. Acts of board, committee or officer of
successor corporation valid.................. 55
SECTION 13.03. Surrender of powers by Corporation........... 55
SECTION 13.04. Required notices or demands may be
served by mail............................... 55
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<S> <C> <C>
SECTION 13.05. Indenture and Securities to be
construed in accordance with laws of
the State of New York........................ 56
SECTION 13.06. Officers' Certificate and Opinion of
Counsel to be furnished upon applications
or demands by Corporation.................... 56
Statements to be included in each
certificate or opinion with respect
to compliance with condition or
covenant..................................... 56
SECTION 13.07. Payments due on Sundays or
holidays..................................... 57
SECTION 13.08. Provisions required by Trust Indenture
Act of 1939 to control....................... 57
SECTION 13.09. Indenture may be executed in
counterparts................................. 57
SECTION 13.10. Separability of Indenture
provisions................................... 57
ACCEPTANCE OF TRUST BY TRUSTEE............................... 58
TESTIMONIUM.................................................. 58
SIGNATURES AND SEALS......................................... 58
ACKNOWLEDGMENTS.............................................. 59
</TABLE>
<PAGE> 16
THIS INDENTURE, dated as of the 1st day of December, 1996 between GTE
CORPORATION, a corporation duly organized and existing under the laws of the
State of New York (hereinafter sometimes referred to as the "Corporation"), and
THE BANK OF NEW YORK, a banking corporation duly organized and existing under
the laws of the State of New York (hereinafter sometimes referred to as the
"Trustee"):
WHEREAS, for its lawful corporate purposes, the Corporation has duly
authorized the issuance of unsecured securities, debentures, notes or other
evidences of indebtedness (hereinafter referred to as the "Securities"), in an
unlimited aggregate principal amount to be issued from time to time in one or
more series as in this Indenture provided as registered Securities without
coupons, to be authenticated by the certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which the Securities
are to be authenticated, issued and delivered, the Corporation has duly
authorized the execution of this Indenture;
WHEREAS, the Securities and the certificate of authentication to be
borne by the Securities are to be substantially in such forms as may be approved
by the Board of Directors or set forth in any indenture supplemental to this
Indenture;
AND WHEREAS, all acts and things necessary to make the Securities
issued pursuant hereto, when executed by the Corporation and authenticated and
delivered by the Trustee as in this Indenture provided, the valid, binding and
legal obligations of the Corporation, and to constitute these presents a valid
indenture and agreement according to its terms, have been done and performed or
will be done and performed prior to the issuance of such Securities, and the
execution of this Indenture and the issue hereunder of the Securities have been
or will be prior to issuance in all respects duly authorized, and the
Corporation, in the exercise of the legal right and power in it vested, executes
this Indenture and proposes to make, execute, issue and deliver the Securities;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Securities are and are to be authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of the Securities
by the holders thereof and of the sum of one dollar ($1.00) to it duly paid by
the Trustee at the execution of these presents, the receipt whereof is hereby
acknowledged, the Corporation covenants and agrees with the Trustee, for the
equal and proportionate benefit (subject to the provisions of this Indenture) of
the respective holders from time to time of the Securities, without any
discrimination, preference or priority of any one Security over any other by
reason of priority in the time of issue, sale or negotiation thereof, or
otherwise, except as provided herein, as follows:
<PAGE> 17
ARTICLE ONE.
Definitions.
SECTION 1.01. The terms defined in this Section (except as in this
Indenture otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section . All other terms
used in this Indenture which are defined in the Trust Indenture Act of 1939, as
amended, or which are by reference in such Act defined in the Securities Act of
1933, as amended (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to such terms in
said Trust Indenture Act and in said Securities Act as in force at the date of
the execution of this instrument.
Additional Amounts:
The term "Additional Amounts" shall mean, with respect to any series of
Securities, the additional amounts which are required by the Securities of such
series, or by or pursuant to a Board Resolution under circumstances specified
therein, to be paid by the Corporation in respect of certain taxes imposed on
certain holders and which are owing to such holders.
Authenticating Agent:
The term "Authenticating Agent" means an authenticating agent with
respect to all or any of the series of Securities, as the case may be, appointed
with respect to all or any series of the Securities, as the case may be, by the
Trustee pursuant to Section 2.10.
Board of Directors:
The term "Board of Directors", when used with reference to any
corporation, shall mean the Board of Directors of such corporation, or an
Executive or Special Committee of such Board.
Board Resolution:
The term "Board Resolution" shall mean a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Corporation to have been duly
adopted by the Board of Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
Business Day:
The term "business day" shall mean any day other than a day on which
banking institutions in the Borough of Manhattan, the City and State of New York
are authorized or obligated by law or executive order to close.
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<PAGE> 18
Certificate:
The term "Certificate" shall mean a certificate signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Corporation. The Certificate need not comply with the provisions
of Section 13.06.
Corporate Trust Office:
The term "Corporate Trust Office" shall mean the principal office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of the execution of this Indenture is
located at 101 Barclay Street, New York, N.Y. 10286, Attention: Corporate Trust
- - Trustee Administration.
Corporation:
The term "Corporation" shall mean GTE Corporation, a New York
corporation, and, subject to the provisions of Article Ten, shall also include
its successors and assigns.
Default:
The term "Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
Depository:
The term "Depository" shall mean, with respect to Securities of any
series for which the Corporation shall determine that such Securities will be
issued as a Global Security, The Depository Trust Company, New York, New York,
another clearing agency, or any successor registered as a clearing agency under
the Securities and Exchange Act of 1934, as amended, or other applicable statute
or regulation, which, in each case, shall be designated by the Corporation
pursuant to either Section 2.01 or 2.11.
Dollar or $:
The term "Dollar" or "$" shall mean a dollar or other equivalent unit
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 or private debt.
Event of Default:
The term "Event of Default" with respect to Securities of a particular
series shall mean any event specified in Section 6.01, continued for the period
of time, if any, therein designated.
Global Security:
The term "Global Security" shall mean, with respect to any series of
Securities, one or more Securities of such series executed by the Corporation
and authenticated and delivered by the Trustee to the Depository or pursuant
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<PAGE> 19
to the Depository's instruction, all in accordance with this Indenture, which
shall be registered in the name of the Depository or its nominee.
Governmental Obligations:
The term "Governmental Obligations" shall mean direct obligations of
the U.S. Government; obligations guaranteed by the U.S. Government; securities
that are backed by U.S. government obligations as collateral under an
arrangement by which the interest and principal payments on the collateral
generally flow immediately through to the holder of the security; or other
securities permitted to be used for the purposes of extinguishment of debt by
the Securities and Exchange Commission or the Financial Accounting Standards
Board.
Indenture:
The term "Indenture" shall mean this instrument as originally executed,
or, if amended or supplemented as herein provided, as so amended or
supplemented.
Interest Payment Date:
The term "interest payment date" when used with respect to any
installment of interest on a Security of a particular series shall mean the date
specified in such Security or in a Board Resolution or in an indenture
supplemental hereto with respect to such series as the fixed date on which an
installment of interest with respect to Securities of that series is due and
payable.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by the
Chairman, the President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Controller or an Assistant Controller or the Secretary or an
Assistant Secretary of the Corporation. Each such certificate shall include the
statements provided for in Section 13.06, if and to the extent required by the
provisions thereof.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel, who shall be satisfactory to the Trustee and who may be an
employee of or counsel for the Corporation. Each such opinion shall include the
statements provided for in Section 13.06, if and to the extent required by the
provisions thereof.
Outstanding:
The term "outstanding", when used with reference to Securities of any
series, shall, subject to the provisions of Section 8.04, mean, as of any
particular time, all Securities of that series theretofore authenticated and
delivered by the Trustee under this Indenture, except
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<PAGE> 20
(a) Securities theretofore cancelled by the Trustee or any paying
agent or delivered to the Trustee or any paying agent cancelled or for
cancellation;
(b) Securities or portions thereof for the payment or redemption of
which moneys or Governmental Obligations in the necessary amount shall
have been deposited in trust with the Trustee or with any paying agent
(other than the Corporation) or shall have been set aside and
segregated in trust by the Corporation (if the Corporation shall act
as its own paying agent), provided, however, that if such Securities
or portions of such Securities are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as
in Article Three provided, or provision satisfactory to the Trustee
shall have been made for giving such notice; and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.07 and Securities alleged to have been destroyed,
lost or stolen which have been paid pursuant to the terms of Section
2.07.
Predecessor Security:
The term "Predecessor Security" of any particular Security shall mean
every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this definition,
any Security authenticated and delivered under Section 2.07 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
Responsible Officer:
The term "responsible officer" when used with respect to the Trustee
shall mean the chairman of the board of directors, the president, any vice
president, the secretary, the treasurer, any trust officer, any corporate trust
officer 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 or her knowledge of and familiarity with the particular
subject.
Security or Securities:
The term "Security" or "Securities" shall mean any Security or
Securities, as the case may be, authenticated and delivered under this
Indenture.
Securityholder:
The term "Securityholder", "holder of Securities", "registered holder",
or other similar term, shall mean the person or persons in whose name or names a
particular Security shall be registered on the books of the Corporation kept for
that purpose in accordance with the terms of this Indenture.
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<PAGE> 21
Sinking Fund Payment:
The term "Sinking Fund Payment" when used with respect to a particular
series of Securities for which a sinking fund has been established shall mean
the amount to be paid by the Corporation, as set forth in a Board Resolution or
indenture supplemental hereto, on each Sinking Fund Payment Date established for
that series.
Sinking Fund Payment Date:
The term "Sinking Fund Payment Date" when used with respect to a
particular series of Securities for which a sinking fund has been established
shall mean the date or dates established pursuant to a Board Resolution or set
forth in an indenture supplemental hereto on which the Corporation is required
to make a Sinking Fund Payment.
Sinking Fund Redemption Date:
The term "Sinking Fund Redemption Date" when used with respect to a
particular series of Securities for which a sinking fund has been established
shall mean the date or dates established pursuant to a Board Resolution or set
forth in an indenture supplemental hereto on which the Corporation is required
to redeem an amount of such Securities at the price fixed for the redemption of
Securities of that series on that date.
Sinking Fund Redemption Price:
The term "Sinking Fund Redemption Price" when used with respect to a
particular series of Securities for which a sinking fund has been established
shall mean the price set forth in a Board Resolution or in an indenture
supplemental hereto at which the Corporation is required to redeem Securities of
that series on each Sinking Fund Redemption Date established for that series.
Subsidiary:
The term "Subsidiary" shall mean any corporation at least a majority of
whose outstanding voting stock shall at the time be owned by the Corporation or
by one or more Subsidiaries or by the Corporation and one or more Subsidiaries.
For the purposes only of this definition of the term "Subsidiary", the term
"voting stock", as applied to the stock of any corporation, shall mean stock of
any class or classes having ordinary voting power for the election of a majority
of the directors of such corporation, other than stock having such power only by
reason of the occurrence of a contingency.
Trustee:
The term "Trustee" shall mean The Bank of New York and, subject to the
provisions of Article Seven, shall also include its successors and assigns, and,
if at any time there is more than one person acting in such capacity hereunder,
"Trustee" shall mean each such person. The term "Trustee" as used with respect
to a particular series of the Securities shall mean the trustee with respect to
that series.
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<PAGE> 22
Trust Indenture Act of 1939, as amended:
The term "Trust Indenture Act of 1939, as amended", subject to the
provisions of Sections 9.01, 9.02, and 10.01, shall mean the Trust Indenture Act
of 1939 as in force at the date of execution of this Indenture.
ARTICLE TWO.
Issue, Description, Terms, Execution,
Registration and Exchange of Securities.
SECTION 2.01. 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 up to the aggregate
principal amount of Securities of that series from time to time authorized by or
pursuant to a Board Resolution or pursuant to one or more indentures
supplemental hereto, prior to the initial issuance of Securities of a particular
series. Prior to the initial issuance of Securities of any series, there shall
be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
that series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of that series);
(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 or the manner of calculation of such rate or rates, if any, the date or
dates from which such interest shall accrue, the interest payment dates on which
such interest shall be payable or the manner of determination of such interest
payment dates;
(5) 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 Corporation;
(6) the obligation, if any, of the Corporation to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions
(including payments made in cash in anticipation of future sinking fund
obligations) 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;
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<PAGE> 23
(7) the form of the Securities of the series including the form of the
certificate of authentication for such series;
(8) if other than denominations of $1,000 or any integral multiple
thereof, the denominations in which the Securities of the series shall be
issuable;
(9) the coin or currency, including composite currencies, in which
payment of the principal of (and premium, if any), or interest on, or any
Additional Amounts in respect of, the Securities of the series shall be payable
(if other than in Dollars);
(10) if the principal of (and premium, if any), or interest on, or any
Additional Amounts in respect of, the Securities of the series are to be
payable, at the election of the Corporation or a holder thereof, in a coin or
currency, including composite currencies, other than that in which the
Securities of the Series are stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election may be made;
(11) if the amount of payments of principal of (and premium, if any),
or interest on, or any Additional Amounts in respect of, the Securities of the
series may be determined with reference to an index, formula or other method
based on a coin or currency, including composite currencies, other than that in
which the Securities of the series are stated to be payable, the manner in which
such amounts shall be determined;
(12) whether and under the circumstances the Corporation will pay
Additional Amounts on the Securities of the series in respect of specified
taxes, assessments or other governmental charges withheld or deducted and, if
so, whether the Corporation will have the option to redeem those Securities
rather than pay the Additional Amounts;
(13) whether the Securities of the series are issuable as a Global
Security and, in such case, the identity of the Depository for such series; and
(14) any and all other terms with respect to such series (which terms
shall not be inconsistent with the terms of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to any such Board Resolution or in any indentures supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Corporation
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
-8-
<PAGE> 24
SECTION 2.02. The Securities of any series and the Trustee's
certificate of authentication to be borne by such Securities shall be
substantially of the tenor and purport as set forth in one or more indentures
supplemental hereto or as provided in the Board Resolution and as set forth in
an Officers' Certificate, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Corporation may deem appropriate and as
are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which Securities
of that series may be listed, or to conform to usage.
SECTION 2.03. The Securities shall be issuable as registered Securities
and, except for any Global Security, in the denominations of $1,000 or any
multiple thereof (or the equivalent thereof in a coin or currency, including
composite currency, other than Dollars). The Securities of a particular series
shall bear interest payable on the dates and at the rate specified with respect
to that series. The principal of and the interest on, and any Additional Amounts
in respect of, the Securities of any series, as well as any premium thereon in
case of redemption thereof prior to maturity, shall be payable in the coin or
currency, including composite currency, permitted with respect to that series,
at the office or agency of the Corporation maintained for that purpose in the
Borough of Manhattan, the City and State of New York. Each Security shall be
dated the date of its authentication.
Unless otherwise set forth in a Board Resolution or one or more
indentures supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, interest on the Securities shall be
computed on the basis of a 360-day year composed of twelve 30-day months;
provided that interest on Securities bearing interest of a floating rate shall
be computed on the basis of a year of 365 or 366 days, as appropriate, for the
actual number of days elapsed.
The interest installment on any Security which is payable, and is
punctually paid or duly provided for, on any interest payment date for
Securities of that series shall be paid to the person in whose name said
Security (or one or more Predecessor Securities) is registered at the close of
business on the regular record date for such interest installment. In the event
that any Security of a particular series or portion thereof is called for
redemption and the redemption date is subsequent to a regular record date with
respect to any interest payment date and prior to such interest payment date,
interest on such Security will be paid upon presentation and surrender of such
Security as provided in Section 3.03.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any interest payment date for Securities of the
same series (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered holder on the relevant regular record date by virtue
of having been such holder; and such Defaulted Interest may be paid by the
Corporation at its election, as provided in clause (1) or clause (2) below:
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<PAGE> 25
(1) The Corporation may elect to make payment of any Defaulted
Interest on Securities to the persons in whose names such Securities
(or their respective Predecessor Securities) are registered at the
close of business on a special record date for the payment of such
Defaulted Interest, which shall be fixed in the following manner: the
Corporation shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Security and the
date of the proposed payment, and at the same time the Corporation
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the persons
entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a special record date for the payment
of such Defaulted Interest which shall not be more than 15 or less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Corporation of
such special record date and, in the name and at the expense of the
Corporation, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed,
first class postage prepaid, to each Securityholder at his or her
address as it appears in the Security register, not less than 10 days
prior to such special record date. Notice of the proposed payment of
such Defaulted Interest and the special record date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the
persons in whose names such Securities (or their respective
Predecessor Securities) are registered on such special record date and
shall be no longer payable pursuant to the following clause (2).
(2) The Corporation may make payment of any Defaulted Interest
on any Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Corporation to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall
be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution or one or more
indentures supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term "regular record date" as
used in this Section with respect to a series of Securities with respect to any
interest payment date for such series shall mean either the fifteenth day of the
month immediately preceding the month in which an interest payment date
established for such series pursuant to Section 2.01 hereof shall occur, if such
interest payment date is the first day of a month, or the last day of the month
immediately preceding the month in which an interest payment date established
for such series pursuant to Section 2.01 hereof shall occur, if such interest
payment date is the fifteenth day of a month, whether or not such date is a
business day.
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<PAGE> 26
Subject to the foregoing provisions of this Section , each Security of
a series delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Security of such series shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 2.04. The Securities shall, subject to the provisions of
Section 2.06, be printed on steel engraved borders or fully or partially
engraved, or legibly typed, as the proper officers of the Corporation may
determine, and shall be signed on behalf of the Corporation by its Chairman, one
of its Vice Chairmen, its President or one of its Vice Presidents, attested by
its Secretary or one of its Assistant Secretaries. The signature of the
Chairman, a Vice Chairman, the President or a Vice President and/or the
signature of the Secretary or an Assistant Secretary in attestation, upon the
Securities, may be in the form of a facsimile signature of a present or any
future Chairman, Vice Chairman, President or Vice President and of a present or
any future Secretary or Assistant Secretary and may be imprinted or otherwise
reproduced on the Securities and for that purpose the Corporation may use the
facsimile signature of any person who shall have been a Chairman, Vice Chairman,
President or Vice President, or of any person who shall have been a Secretary or
Assistant Secretary, notwithstanding the fact that at the time the Securities
shall be authenticated and delivered or disposed of such person shall have
ceased to be the Chairman, a Vice Chairman, President or a Vice President, or
the Secretary or an Assistant Secretary, of the Corporation, as the case may be.
Only such Securities as shall bear thereon a certificate of
authentication substantially in the form established for such Securities,
executed manually by an authorized signatory of the Trustee, shall be entitled
to the benefits of this Indenture or be valid or obligatory for any purpose.
Such certificate executed by the Trustee, or by any Authenticating Agent
appointed by the Trustee with respect to such series, upon any Security of such
series executed by the Corporation shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture.
In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities the Trustee
shall be entitled to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Opinion of Counsel stating that the form and terms
thereof have been established in conformity with the provisions of this
Indenture and that such Securities, when authenticated and delivered by the
Trustee, will be duly authorized, executed and delivered and will constitute the
legal, valid and binding obligations of the Corporation, enforceable against it
in accordance with their terms.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
SECTION 2.05. Securities of any series may be exchanged upon
presentation thereof for the purpose at the office or agency of the Corporation
in the Borough of Manhattan, the City and State of New York, for other
Securities of such series of authorized denominations, and for a like aggregate
principal amount, upon payment of a sum sufficient to cover any tax
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or other governmental charge in relation thereto, all as provided in this
Section . In respect of any Securities so surrendered for exchange, the
Corporation shall execute, the Trustee shall authenticate and such office or
agency shall deliver in exchange therefor the Security or Securities of the same
series which the Securityholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously outstanding.
The Corporation shall keep, or cause to be kept, at its office or
agency designated for the purpose in the Borough of Manhattan, the City and
State of New York, a register or registers (herein referred to as the "Security
register") in which, subject to such reasonable regulations as it may prescribe,
the Corporation shall register the Securities and the transfer of Securities as
in this Article provided and which at all reasonable times shall be open for
inspection by the Trustee.
Upon surrender for transfer of any Security at the office or agency of
the Corporation designated for the purpose in the Borough of Manhattan, the City
and State of New York, the Corporation shall execute, the Trustee shall
authenticate and such office or agency shall deliver in the name of the
transferee or transferees a new Security or Securities of the same series as the
Security presented for a like aggregate principal amount.
All Securities presented or surrendered for exchange or registration of
transfer, as provided in this Section shall be accompanied (if so required by
the Corporation or the Security Registrar) by a written instrument or
instruments of transfer, in form satisfactory to the Corporation or the Security
Registrar, duly executed by the registered holder or by his duly authorized
attorney in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, or issue of new Securities in case of partial redemption
of any series, but the Corporation may require payment of a sum sufficient to
cover any tax or other governmental charge in relation thereto, other than
exchanges pursuant to Section 2.06, the second paragraph of Section 3.03 and
Section 9.04 not involving any transfer.
The Corporation shall not be required (a) to issue, exchange or
register the transfer of any Securities during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
less than all the outstanding Securities of the same series and ending at the
close of business on the day of such mailing; nor (b) to register the transfer
of or exchange any Securities of any series or portions thereof called for
redemption.
The provisions of this Section 2.05 are, with respect to any Global
Security, subject to Section 2.11 hereof.
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SECTION 2.06. Pending the preparation of definitive Securities of any
series, the Corporation may execute, and the Trustee shall authenticate and
deliver, temporary Securities (printed, lithographed or typewritten) of any
authorized denomination, and substantially in the form of the definitive
Securities in lieu of which they are issued, but with such omissions, insertions
and variations as may be appropriate for temporary Securities, all as may be
determined by the Corporation. Every temporary Security of any series shall be
executed by the Corporation and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Securities of such series. Without unnecessary delay the Corporation
will execute and will furnish definitive Securities of such series and thereupon
any or all temporary Securities of such series may be surrendered in exchange
therefor (without charge to the holders), at the office or agency of the
Corporation designated for the purpose in the Borough of Manhattan, the City and
State of New York, and the Trustee shall authenticate and such office or agency
shall deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of such series. Until so exchanged,
the temporary Securities of such series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series authenticated and
delivered hereunder.
SECTION 2.07. In case any temporary or definitive Security shall become
mutilated or be destroyed, lost or stolen, the Corporation (subject to the next
succeeding sentence) shall execute, and upon its request the Trustee (subject as
aforesaid) shall authenticate and deliver, a new Security of the same series
bearing a number not contemporaneously outstanding, in exchange and substitution
for the mutilated Security, or in lieu of and in substitution for the Security
so destroyed, lost or stolen. In every case the applicant for a substituted
Security shall furnish to the Corporation and to the Trustee such security or
indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Corporation and to the Trustee evidence to their satisfaction of the
destruction, loss or theft of the applicant's Security and of the ownership
thereof. The Trustee may authenticate any such substituted Security and deliver
the same upon the written request or authorization of any officer of the
Corporation. Upon the issue of any substituted Security, the Corporation may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto. In case any Security which has
matured or is about to mature shall become mutilated or be destroyed, lost or
stolen, the Corporation may, instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated Security) if the applicant for such payment shall furnish to the
Corporation and to the Trustee such security or indemnity as they may require to
save them harmless, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Corporation and the Trustee of the destruction, loss or
theft of such Security and of the ownership thereof.
Every Security issued pursuant to the provisions of this Section in
substitution for any Security which is mutilated, destroyed, lost or stolen
shall constitute an additional contractual obligation of the Corporation,
whether or not the mutilated, destroyed, lost or stolen Security shall be found
at any time, or be enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all
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other Securities of the same series duly issued hereunder. All Securities shall
be held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities, and shall preclude (to the extent lawful) any and all
other rights or remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.08. All Securities surrendered for the purpose of payment,
redemption, exchange or registration of transfer shall, if surrendered to the
Corporation or any paying agent, be delivered to the Trustee for cancellation,
or, if surrendered to the Trustee, shall be cancelled by it, and no Securities
shall be issued in lieu thereof except as expressly required or permitted by any
of the provisions of this Indenture. On request of the Corporation, the Trustee
shall deliver to the Corporation cancelled Securities held by the Trustee. In
the absence of such request the Trustee may destroy cancelled Securities and
deliver a certificate of destruction to the Corporation. If the Corporation
shall otherwise acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are delivered to the Trustee for
cancellation.
SECTION 2.09. Nothing in this Indenture or in the Securities, express
or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and the holders of the Securities,
any legal or equitable right, remedy or claim under or in respect of this
Indenture, or under any covenant, condition or provision herein contained; all
such covenants, conditions and provisions being for the sole benefit of the
parties hereto and of the holders of the Securities.
SECTION 2.10. So long as any of the Securities of any series remain
outstanding there may be an Authenticating Agent for any or all such series of
Securities which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, transfer, or
partial redemption thereof, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. All references in this
Indenture to the authentication of Securities by the Trustee shall be deemed to
include authentication by an Authenticating Agent for such series except for
authentication upon original issuance or pursuant to Section 2.07 hereof. Each
Authenticating Agent shall be acceptable to the Corporation and shall be a
corporation which has a combined capital and surplus, as most recently reported
or determined by it, sufficient under the laws of any jurisdiction under which
it is organized or in which it is doing business to conduct a trust business,
and which is otherwise authorized under such laws to conduct such business and
is subject to supervision or examination by Federal or State authorities. If at
any time any Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately and the Trustee shall appoint an
eligible successor Authenticating Agent acceptable to the Corporation.
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Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Corporation. The Trustee may at
any time (and upon request by the Corporation shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Corporation. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent the Trustee promptly may
appoint an eligible successor Authenticating Agent acceptable to the
Corporation. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder as if originally named as an Authenticating Agent
pursuant hereto.
SECTION 2.11. (a) If the Corporation shall establish pursuant to
Section 2.01 that the Securities of a particular series are to be issued as a
Global Security, then the Corporation shall execute and the Trustee shall, in
accordance with Section 2.04, authenticate and deliver, a Global Security which
(i) shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, all of the Outstanding Securities of such series,
(ii) shall be registered in the name of the Depository or its nominee, (iii)
shall be delivered by the Trustee to the Depository or pursuant to the
Depository's instruction and (iv) shall bear a legend substantially to the
following effect: "Except as otherwise provided in Section 2.11 of the
Indenture, this Security may be transferred, in whole but not in part, only to
another nominee of the Depository or to a successor Depository or to a nominee
of such successor Depository."
(b) Notwithstanding the provisions of Section 2.05, the Global Security
of a series may be transferred, in whole but not in part and in the manner
provided in Section 2.05, only to another nominee of the Depository for such
series, or to a successor Depository for such series selected or approved by the
Corporation or to a nominee of such successor Depository.
(c) If at any time the Depository for a series of Securities notifies
the Corporation that it is unwilling or unable to continue as Depository for
such series or if at any time the Depository for such series shall no longer be
registered or in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation and a successor Depository
for such series is not appointed by the Corporation within 90 days after the
Corporation receives such notice or becomes aware of such condition, as the case
may be, this Section 2.11 shall no longer be applicable to the Securities of
such series and the Corporation will execute, and subject to Section 2.05, the
Trustee will authenticate and deliver, Securities of such series in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
of such series in exchange for such Global Security. In addition, the
Corporation may at any time determine that the Securities of any series shall no
longer be represented by a Global Security and that the provisions of this
Section 2.11 shall no longer apply to the Securities of such series. In such
event the Corporation will execute and subject to Section 2.05, the Trustee,
upon receipt of an Officers' Certificate evidencing such determination by the
Corporation, will authenticate and
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deliver Securities of such series in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such
Global Security. Upon the exchange of the Global Security for such Securities in
definitive registered form without coupons, in authorized denominations, the
Global Security shall be cancelled by the Trustee. Such Securities in definitive
registered form issued in exchange for the Global Security pursuant to this
Section 2.11(c) shall be registered in such names and in such authorized
denominations as the Depository, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Depository for delivery to the persons in
whose names such Securities are so registered.
ARTICLE THREE.
Redemption of Securities and Sinking Fund Provisions.
SECTION 3.01. The Corporation may redeem the Securities of any series
issued hereunder on and after the dates and in accordance with the terms
established for such series pursuant to Section 2.01 hereof.
SECTION 3.02. In case the Corporation shall desire to exercise such
right to redeem all or, as the case may be, a portion of the Securities of any
series in accordance with the right reserved so to do, it shall give notice of
such redemption to holders of the Securities of such series to be redeemed by
mailing, first class postage prepaid, a notice of such redemption not less than
30 days and not more than 60 days before the date fixed for redemption of that
series to such holders at their last addresses as they shall appear upon the
Security register. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
registered holder receives the notice. In any case, failure duly to give such
notice to the holder of any Security of any series designated for redemption in
whole or in part, or any defect in the notice, shall not affect the validity of
the proceedings for the redemption of any other Securities of such series or any
other series. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Corporation shall furnish the
Trustee with an Officers' Certificate evidencing compliance with any such
restriction.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Securities of that series are to be
redeemed, and shall state that payment of the redemption price of such
Securities to be redeemed will be made at the office or agency of the
Corporation in the Borough of Manhattan, the City and State of New York, upon
presentation and surrender of such Securities, that interest accrued to the date
fixed for redemption will be paid as specified in said notice, that from and
after said date interest will cease to accrue and that the redemption is for a
sinking fund, if such is the case. If less than all the Securities of a series
are to be redeemed, the notice to the holders of Securities of that series to be
redeemed in whole or in part shall specify the particular Securities to be so
redeemed. In case any Security is to be redeemed in part only, the notice which
relates to such Security shall state the portion of the principal amount thereof
to be redeemed, and shall state that on and after the redemption date, upon
surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
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If less than all the Securities of a series are to be redeemed, the
Corporation shall give the Trustee at least 45 days' notice in advance of the
date fixed for redemption as to the aggregate principal amount of Securities of
the series to be redeemed, and thereupon the Trustee shall select in such manner
as it shall deem appropriate and fair in its discretion and which may provide
for the selection of a portion or portions (equal to $1,000 or a multiple
thereof, or the equivalent thereof in a coin or currency, including composite
currencies, other than Dollars) of the principal amount of such Securities of a
denomination larger than $1,000 (or the equivalent thereof in a coin or
currency, including composite currencies, other than Dollars), the Securities to
be redeemed and shall thereafter promptly notify the Corporation in writing of
the numbers of the Securities to be redeemed, in whole or in part.
The Corporation may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its Chairman, any Vice Chairman, President
or any Vice President to the Trustee at least five (5) business days prior to
the date on which notice of redemption is to be first mailed (unless a shorter
notice shall be accepted by the Trustee as sufficient), instruct the Trustee or
any paying agent to call all or any part of the Securities of a particular
series for redemption and to give notice of redemption in the manner set forth
in this Section , such notice to be in the name of the Corporation or its own
name as the Trustee or such paying agent may deem advisable. In any case in
which notice of redemption is to be given by the Trustee or any such paying
agent, the Corporation shall deliver or cause to be delivered to, or permit to
remain with, the Trustee or such paying agent, as the case may be, such Security
register, transfer books or other records, or suitable copies or extracts
therefrom, sufficient to enable the Trustee or such paying agent to give any
notice by mail that may be required under the provisions of this Section .
SECTION 3.03. If the giving of notice of redemption shall have been
completed as above provided, the Securities or portions of Securities of the
series to be redeemed specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption and
interest on such Securities or portions of such Securities called for redemption
as aforesaid shall cease to accrue on and after the date fixed for redemption.
On presentation and surrender of such Securities on or after the date fixed for
redemption at the place of payment specified in the notice, said Securities
shall be paid and redeemed at the applicable redemption price for such series,
together with interest accrued thereon to the date fixed for redemption (but if
the date fixed for redemption is an interest payment date, the interest
installment payable on such date shall be payable to the registered holder at
the close of business on the applicable record date pursuant to Section 2.03).
Upon presentation of any Security of such series which is to be
redeemed in part only, the Corporation shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall
deliver to the holder thereof, at the expense of the Corporation, a new Security
or Securities of the same series of authorized denominations in principal amount
equal to the unredeemed portion of the Security so presented.
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SECTION 3.04. On the Sinking Fund Payment Dates for each series of
Securities for which a sinking fund has been established, while any of the
Securities of that series are outstanding, the Corporation shall deposit with
the Trustee, as and for a sinking fund, the Sinking Fund Payment for that
series.
Such payments shall be made in cash or, in lieu of making payment of
all or any part thereof in cash, the Corporation at its option may deliver to
the Trustee Securities of that series then outstanding, and the amount of cash
which would otherwise be required under this Section shall be reduced by the
principal amount of the Securities so delivered. The Corporation shall, at least
one full business day prior to each such Sinking Fund Payment Date, also pay to
the Trustee the accrued interest and premium, if any, due on Securities of the
series to be redeemed on such current Sinking Fund Payment Date pursuant to
Section 3.05.
The Corporation's obligations under this Section are subject to the
provisions of Sections 3.05 and 3.06 as to credits which may be taken by the
Corporation thereunder.
SECTION 3.05. Not less than forty-five (45) days prior to a Sinking
Fund Payment Date (unless a later date shall be acceptable to the Trustee), the
Chairman, any Vice Chairman, President or any Vice President of the Corporation
shall (i) notify the Trustee, in writing, as to the amount of the Sinking Fund
Payment for a particular series due for that year which it will satisfy by
delivery of Securities of that series, (ii) deliver such Securities to the
Trustee, (iii) notify the Trustee as to the amount of credit which it will take
under Section 3.06 with respect to the Sinking Fund Payment due for that year
for such series and (iv) notify the Trustee of any Securities of that series
which are to be called in anticipation of future Sinking Fund Payments. Any
Sinking Fund Payments (including the interest accrued and premium, if any, on
Securities of that series to be redeemed) received by the Trustee in cash shall
be applied by the Trustee to the redemption of Securities of that series on the
current Sinking Fund Payment Date at the applicable Sinking Fund Redemption
Price established with respect to that series in the manner provided in this
Article Three, subject to the following provisions of this Section .
If all or any part of any such Sinking Fund Payment is to be made in
cash as aforesaid, the Trustee shall, at least 35 days before the current
Sinking Fund Payment Date, select as provided in Section 3.02, Securities and
portions of Securities of the series to be called for redemption on such date
sufficient to exhaust as nearly as may be the sinking fund moneys held by the
Trustee or a paying agent under Section 3.04 with respect to that series on such
date; but the Trustee shall not cause any fraction of a $1,000 Security (or the
equivalent thereof in a coin or currency, including composite currencies, other
than Dollars) of that series to be so called nor shall the Trustee be obliged to
make such selection or cause any Securities of that series to be so called
whenever it expects to have available for that purpose less than $25,000 (or the
equivalent thereof in a coin or currency, including composite currencies, other
than Dollars), in which case the Trustee shall retain the resulting balances and
apply them with the next succeeding Sinking
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Fund Payment with respect to that series. The Trustee, at least 35 days before
the applicable Sinking Fund Redemption Date, shall give notice to the
Corporation accordingly, specifying the Securities and portions of Securities of
the series to be redeemed, and the Corporation covenants forthwith to give
notice as provided in Section 3.02 and to take any other action required so to
redeem such Securities on the applicable Sinking Fund Payment Date; or the
Trustee shall, at the request and at the expense and on behalf of the
Corporation, give such notice and take such action.
All Securities redeemed by the application of money held in the sinking
fund for that series or delivered by the Corporation to the Trustee on account
of any Sinking Fund Payment for that series in lieu of cash shall, unless
already cancelled, be forthwith cancelled by the Trustee.
Moneys in the sinking fund shall be held by the Trustee subject to the
provisions of Section 7.05 as security for all the Securities of that series
unless and until particular Securities of that series are selected for
redemption, after which to the extent required for redemption such moneys shall
be held in trust for the Securities of that series so selected.
SECTION 3.06. The Corporation may, in anticipation of its future
sinking fund obligations for a particular series, call Securities of that series
for redemption on the Sinking Fund Redemption Dates established with respect to
that series at the applicable Sinking Fund Redemption Price established for that
series, in the manner provided herein, or in lieu thereof, deliver to the
Trustee, before forty-five (45) days prior to a Sinking Fund Redemption Date for
that series (unless a later date shall be acceptable to the Trustee) in any such
year, Securities of that series then outstanding (together with proper
instruments of transfer satisfactory to the Trustee); provided, however, that
the aggregate principal amount of Securities redeemed for cash through sinking
fund payments in any one year shall not exceed the amount, if any, established
with respect to such series pursuant to Section 2.01. There shall be no limit to
the amount of future sinking fund obligations of a series that may be satisfied
with Securities. The Corporation shall thereby obtain a credit of 100% of the
principal amount of the Securities of that series so redeemed or delivered,
which it may apply from time to time in any one or more years against its future
sinking fund obligations with respect to that series, as provided herein.
SECTION 3.07. Nothing in this Article shall be deemed to limit the
right of the Corporation (i) to call Securities for which a sinking fund has
been established for redemption at the applicable regular redemption price as
provided in Sections 3.01 and 3.02 or (ii) to purchase or acquire Securities of
a particular series otherwise and to use Securities so purchased or acquired in
lieu of cash for making or anticipating sinking fund payments with respect to
that series under Section 3.04 and Section 3.06.
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ARTICLE FOUR.
Particular Covenants of the Corporation.
The Corporation covenants and agrees for each series of the Securities
as follows:
SECTlON 4.01. The Corporation will duly and punctually pay or cause to
be paid the principal of (and premium, if any) and interest on the Securities of
that series at the time and place and in the manner provided herein and
established with respect to such Securities.
SECTION 4.02. So long as any series of the Securities remain
outstanding the Corporation agrees to maintain an office or agency in the
Borough of Manhattan, the City and State of New York, with respect to such
series and at such other location or locations as may be designated as provided
in this Section 4.02, where (i) Securities of that series may be presented for
payment, (ii) Securities of that series may be presented as hereinabove
authorized for registration of transfer and exchange, and (iii) notices and
demands to or upon the Corporation in respect of the Securities of that series
and this Indenture may be given or served. As such office or agency in the
Borough of Manhattan, the City and State of New York, the Corporation hereby
designates the office of GTE Shareholder Services Incorporated located in the
Borough of Manhattan, the City and State of New York, such designation to
continue with respect to such office or agency until the Corporation shall, by
written notice signed by its Chairman, any Vice Chairman, its President or a
Vice President and delivered to the Trustee, designate some other office or
agency for such purposes or any of them. If at any time the Corporation shall
fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, notices and demands may be
made, given or served at the Corporate Trust Office of the Trustee, and the
Corporation hereby appoints the Trustee as its agent to receive all such
presentations, notices and demands.
SECTION 4.03. (a) If the Corporation shall appoint one or more paying
agents for all or any series of the Securities, other than the Trustee, the
Corporation will cause each such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section,
(1) that it will hold all sums held by it as such agent for
the payment of the principal of (and premium, if any) or interest on
the Securities of that series (whether such sums have been paid to it
by the Corporation or by any other obligor on such Securities) in
trust for the benefit of the persons entitled thereto;
(2) that it will give the Trustee notice of any failure by the
Corporation (or by any other obligor on such Securities) to make any
payment of the principal of (and premium, if any) or interest on the
Securities of that series when the same shall be due and payable;
(3) that at any time during the continuance of any failure
referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such paying agent; and
(4) that it will perform all other duties of paying agent as
set forth in this Indenture.
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(b) If the Corporation shall act as its own paying agent with respect
to any series of the Securities, it will on or before each due date of the
principal of (and premium, if any) or interest on Securities of that series, set
aside, segregate and hold in trust for the benefit of the persons entitled
thereto a sum sufficient to pay such principal and premium, if any) or interest
so becoming due on Securities of that series until such sums shall be paid to
such persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of such action, or any failure (by it or any other obligor on
such Securities) to take such action.
(c) Anything in this Section to the contrary notwithstanding, (i) the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.05, and (ii) the Corporation may at any time, for the
purpose of obtaining the satisfaction and discharge of this Indenture or for any
other purpose, pay, or direct any paying agent to pay, to the Trustee all sums
held in trust by the Corporation or such paying agent, such sums to be held by
the Trustee upon the same terms as those upon which such sums were held by the
Corporation or such paying agent; and, upon such payment by any paying agent to
the Trustee, such paying agent shall be released from all further liability with
respect to such money.
SECTION 4.04. The Corporation, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner provided in
Section 7.10, a Trustee, so that there shall at all times be a Trustee
hereunder.
SECTION 4.05. The Corporation will not, while any of the Securities
remain outstanding, create, or suffer to be created or to exist, any mortgage,
lien, pledge, security interest or other encumbrance of any kind upon any
property of any character of the Corporation whether now owned or hereafter
acquired or upon any of the income or profits therefrom unless it shall make
effective provision whereby the Securities then outstanding shall be secured by
such mortgage, lien, pledge, security interest or other encumbrance equally and
ratably with any and all obligations and indebtedness thereby secured so long as
any such obligations and indebtedness shall be so secured; provided, however,
that nothing in this Section shall be construed to prevent the Corporation from
creating or from suffering to be created or to exist, any mortgages, liens,
pledges, security interests or other encumbrances, or any agreements, of the
following character:
(1) Purchase money mortgages, or other purchase money liens,
pledges or encumbrances of any kind upon property hereafter acquired
by the Corporation, or mortgages, liens, pledges, security interests
or other encumbrances of any kind existing on such property at the
time of the acquisition thereof, or conditional sales agreements or
other title retention agreements with respect to any property
hereafter acquired; provided, however, that no such mortgage, lien,
pledge, security interest or other encumbrance, and no such agreement,
shall extend to or cover any other property of the Corporation;
(2) The replacement, extension or renewal of any such
mortgage, lien, pledge, security interest or other encumbrance, or of
any such agreement, permitted by the foregoing clause (1), or the
replacement, extension or renewal (without increase) of the
indebtedness secured thereby;
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(3) Liens for taxes or assessments or governmental charges or
levies; pledges or deposits to secure obligations under workmen's
compensation laws or similar legislation; pledges or deposits to
secure performance in connection with bids, tenders, contracts (other
than contracts for the payment of money) or leases to which the
Corporation is a party; deposits to secure public or statutory
obligations of the Corporation; materialmen's, mechanics', carriers',
worker's, repairmen's or other like liens in the ordinary course of
business, or deposits to obtain the release of such liens; deposits to
secure surety and appeal bonds to which the Corporation is a party;
other pledges or deposits for similar purposes in the ordinary course
of business; liens created by or resulting from any litigation or
legal proceeding which at the time is currently being contested in
good faith by appropriate proceedings; leases made, or existing on
property acquired, in the ordinary course of business; landlord's
liens under leases to which the Corporation is a party; zoning
restrictions, easements, licenses, restrictions on the use of real
property or minor irregularities in title thereto, which do not
materially impair the use of such property in the operation of the
business of the Corporation or the value of such property for the
purpose of such business; the lien of the Trustee described in Section
7.06 hereof; or
(4) Subordination of the Corporation's rights with respect to
any indebtedness owing to the Corporation by a Subsidiary to the
rights of any creditor of such Subsidiary for money or credit advanced
to such Subsidiary.
SECTION 4.06. The Corporation will not, while any of the Securities
remain outstanding, consolidate with, or merge into, or merge into itself, or
sell or convey all or substantially all of its property to, any other
corporation unless the provisions of Article Ten hereof are complied with.
If upon any such consolidation or merger, or sale or conveyance, any of
the property of the Corporation would thereupon become subject to any mortgage,
security interest, pledge or lien, the Corporation prior to such consolidation,
merger, sale or conveyance will secure the outstanding Securities, or cause the
same to be secured, equally and ratably with the other indebtedness or
obligations secured by such mortgage, security interest, pledge or lien so long
as such other indebtedness or obligations shall be so secured; provided,
however, that the subjection of property of the Corporation to any mortgage,
security interest, pledge or lien of the character referred to in clauses (1),
(2), (3) and (4) of Section 4.05 shall be deemed excluded from the operation of
this Section and shall not require that any of the Securities be secured.
ARTICLE FIVE.
Securityholders' Lists and Reports by the Corporation
and the Trustee.
SECTION 5.01. The Corporation will furnish or cause to be furnished to
the Trustee (a) semi-annually, not more than 15 days after each regular record
date (as defined in Section 2.03) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of each series
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of Securities as of such regular record date and (b) at such other times as the
Trustee may request in writing, within 30 days after the receipt by the
Corporation of any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished; provided,
however, no such list need be furnished for any series for which the Trustee
shall be the Security registrar.
SECTION 5.02. (a) The Trustee shall preserve, in as current a form as
is reasonably practicable, all information as to the names and addresses of the
holders of Securities contained in the most recent list furnished to it as
provided in Section 5.01 and as to the names and addresses of holders of
Securities received by the Trustee in its capacity as Security registrar (if
acting in such capacity). The Trustee may destroy any list furnished to it as
provided in Section 5.01 upon receipt of a new list so furnished.
(b) In case three or more holders of Securities of a series
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other holders of Securities of such series or holders of all
Securities with respect to their rights under this Indenture or under such
Securities, and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five business days after the receipt of such application, at its
election, either
(1) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section, or
(2) inform such applicants as to the approximate number of
holders of Securities of such series or of all Securities, as the case
may be, whose names and addresses appear in the information preserved
at the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section , and as to the approximate cost of
mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each holder of such series or of all Securities, as the case may be,
whose name and address appears in the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this Section , a
copy of the form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the
Trustee shall mail to such applicants and file with the Securities and Exchange
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the holders of Securities of such series or
of all Securities, as the case may be, or would be in violation of applicable
law. Such written statement shall specify the basis
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of such opinion. If said Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, said Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Securityholders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every holder of the Securities, by receiving and holding
the same, agrees with the Corporation and the Trustee that neither the
Corporation nor the Trustee nor any paying agent nor any Security registrar
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the holders of Securities in accordance with the
provisions of subsection (b) of this Section , regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
said subsection (b).
SECTION 5.03. (a) The Corporation covenants and agrees to file with the
Trustee, within 15 days after the Corporation is required to file the same with
the Securities and Exchange Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as said Commission may from time to time by rules and regulations
prescribe) which the Corporation may be required to file with said Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Corporation is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and said
Commission, in accordance with rules and regulations prescribed from time to
time by said Commission, 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 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) The Corporation covenants and agrees to file with the Trustee and
the Securities and Exchange Commission, in accordance with the rules and
regulations prescribed from time to time by said Commission, such additional
information, documents and reports with respect to compliance by the Corporation
with the conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations.
(c) The Corporation covenants and agrees to transmit by mail, first
class postage prepaid, or reputable over-night delivery service which provides
evidence of receipt to the Securityholders, as their names and addresses appear
upon the registration books, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the Corporation pursuant to subsections (a) and (b) of this Section as
may be required by rules and regulations prescribed from time to time by the
Securities and Exchange Commission.
(d) The Corporation covenants and agrees to furnish to the Trustee, on
or before May 15 in each calendar year in which any of the Securities are
outstanding, or on or before such other day in each calendar year as the
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Corporation and the Trustee may from time to time agree upon, a Certificate as
to his or her knowledge of the Corporation's compliance with all conditions and
covenants under this Indenture. For purposes of this subsection (d), such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture. Such Certificate shall
comply with Section 314(a)(4) of the Trust Indenture Act.
SECTION 5.04. (a) On or before July 15 in each year in which any
Securities are outstanding hereunder, the Trustee shall transmit by mail, first
class postage prepaid, to the Securityholders, as their names and addresses
appear upon the registration books, a brief report dated as of the preceding May
15, with respect to any of the following events which may have occurred within
the previous twelve months (but if no such event has occurred within such period
no report need be transmitted):
(1) any change to its eligibility under Section 7.09, and its
qualifications under Section 7.08;
(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of subsection (c) of Section
7.08;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on any
property or funds held or collected by it as Trustee if such advances
so remaining unpaid aggregate more than 1/2 of 1% of the principal
amount of the Securities outstanding on the date of such report;
(4) any change to the amount, interest rate, and maturity date
of all other indebtedness owing by the Corporation, or by any other
obligor on the Securities, to the Trustee in its individual capacity,
on the date of such report, with a brief description of any property
held as collateral security therefor, except any indebtedness based
upon a creditor relationship arising in any manner described in
paragraphs (2), (3), (4), or (6) of subsection (b) of Section 7.13;
(5) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such report;
(6) any release, or release and substitution, of property
subject to the lien of the indenture (and the consideration thereof, if
any) which it has not previously reported;
(7) any additional issue of Securities which the Trustee has
not previously reported; and
(8) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which in its opinion materially affects the Securities or the
Securities of any series, except action in respect of a default, notice
of which has been or is to be withheld by it in accordance with the
provisions of Section 6.07.
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(b) The Trustee shall transmit by mail, first class postage prepaid, to
the Securityholders, as their names and addresses appear upon the registration
books, a brief report with respect to the character and amount of any advances
(and if the Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee as such since the date of the last report
transmitted pursuant to the provisions of subsection (a) of this Section (or if
no such report has yet been so transmitted, since the date of execution of this
Indenture), for the reimbursement of which it claims or may claim a lien or
charge prior to that of the Securities of any series on property or funds held
or collected by it as Trustee, and which it has not previously reported pursuant
to this subsection if such advances remaining unpaid at any time aggregate more
than 10% of the principal amount of Securities of such series outstanding at
such time, such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such transmission
to Securityholders, be filed by the Trustee with the Corporation, with each
stock exchange upon which any Securities are listed (if so listed) and also with
the Securities and Exchange Commission. The Corporation agrees to promptly
notify the Trustee when any Securities become listed on any stock exchange.
ARTICLE SIX.
Remedies of the Trustee and Securityholders
on Event of Default.
SECTION 6.01. Whenever used herein with respect to Securities of a
particular series, "Event of Default" means any one or more of the following
events which has occurred and is continuing:
(a) default in the payment of any installment of interest upon any of
the Securities of that series, as and when the same shall become due and
payable, and continuance of such default for a period of 30 business days; or
(b) default in the payment of the principal of (or premium, if any, on)
any of the Securities of that series as and when the same shall become due and
payable whether at maturity, upon redemption, by declaration or otherwise, or in
any payment required by any sinking or analogous fund established with respect
to that series; or
(c) failure on the part of the Corporation duly to observe or perform
any other of the covenants or agreements on the part of the Corporation with
respect to that series contained in such Securities or otherwise established
with respect to that series of Securities pursuant to Section 2.01 hereof or
contained in this Indenture (other than a covenant or agreement which has been
expressly included in this Indenture solely for the benefit of one or more
series of Securities other than such series) for a period of 90 days after the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Corporation by the Trustee, by registered or
certified mail, or to the Corporation and the Trustee by the holders of at least
25% in principal amount of the Securities of that series at the time
outstanding; or
(d) a decree or order by a court having jurisdiction in the premises
shall have been entered adjudging the Corporation a bankrupt or insolvent, or
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approving as properly filed a petition seeking liquidation or reorganization of
the Corporation under the Federal Bankruptcy Code or any other similar
applicable Federal or State law, and such decree or order shall have continued
unvacated and unstayed for a period of 90 days; or an involuntary case shall be
commenced under such Code in respect of the Corporation and shall continue
undismissed for a period of 90 days or an order for relief in such case shall
have been entered; or a decree or order of a court having jurisdiction in the
premises shall have been entered for the appointment on the ground of insolvency
or bankruptcy of a receiver or custodian or liquidator or trustee or assignee in
bankruptcy or insolvency of the Corporation or of its property, or for the
winding up or liquidation of its affairs, and such decree or order shall have
remained in force unvacated and unstayed for a period of 90 days; or
(e) the Corporation shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy proceeding
against it, or shall file a petition or answer or consent seeking liquidation or
reorganization under the Federal Bankruptcy Code or any other similar applicable
Federal or State law, or shall consent to the filing of any such petition, or
shall consent to the appointment on the ground of insolvency or bankruptcy of a
receiver or custodian or liquidator or trustee or assignee in bankruptcy or
insolvency of it or of its property, or shall make an assignment for the benefit
of creditors.
In each and every such case, unless the principal of all the Securities
of that series shall have already become due and payable, either the Trustee or
the holders of not less than 25% in aggregate principal amount of the Securities
of that series then outstanding hereunder, by notice in writing to the
Corporation (and to the Trustee if given by such Securityholders), may declare
the principal of all the Securities of that series to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything contained in this Indenture or in the
Securities of that series or established with respect to that series pursuant to
Section 2.01 hereof to the contrary notwithstanding. This provision, however, is
subject to the condition that if, at any time after the principal of the
Securities of that series shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Corporation shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of that series and the principal of (and
premium, if any, on) any and all Securities of that series which shall have
become due otherwise than by acceleration (with interest upon such principal and
premium, if any, and, to the extent that such payment is enforceable under
applicable law, upon overdue installments of interest, at the rate per annum
expressed in the Securities of that series to the date of such payment or
deposit) and the amount payable to the Trustee under Section 7.06, and any and
all defaults under the Indenture, other than the nonpayment of principal on
Securities of that series which shall not have become due by their terms, shall
have been remedied or waived as provided in Section 6.06--then and in every such
case the holders of a majority in aggregate principal amount of the Securities
of that series then outstanding, by written notice to the Corporation and to the
Trustee, may rescind and annul such declaration and its consequences; but no
such rescission and annulment shall extend to or shall affect any subsequent
default, or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right with
respect to Securities of that series under this Indenture and such proceedings
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shall have been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined adversely to the
Trustee, then and in every such case the Corporation and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Corporation and the Trustee shall continue as
though no such proceedings had been taken.
SECTION 6.02. The Corporation covenants that (1) in case default shall
be made in the payment of any installment of interest on any of the Securities
of that series, as and when the same shall become due and payable, and such
default shall have continued for a period of 30 business days, or (2) in case
default shall be made in the payment of the principal of (or premium, if any,
on) any of the Securities of that series when the same shall have become due and
payable, whether upon maturity of the Securities of that series or upon
redemption or upon declaration or otherwise--then, upon demand of the Trustee,
the Corporation will pay to the Trustee, for the benefit of the holders of the
Securities of that series, the whole amount that then shall have become due and
payable on all such Securities for principal (and premium, if any) or interest,
or both, as the case may be, with interest upon the overdue principal (and
premium, if any) and (to the extent that payment of such interest is enforceable
under applicable law) upon overdue installments of interest at the rate per
annum expressed in the Securities of that series; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, and the amount payable to the Trustee under Section 7.06.
In case the Corporation shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law or
in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce any
such judgment or final decree against the Corporation or other obligor upon the
Securities of that series and collect in the manner provided by law out of the
property of the Corporation or other obligor upon the Securities of that series
wherever situated the moneys adjudged or decreed to be payable.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or other judicial
proceedings affecting the Corporation, any other obligor on such Securities, or
the creditors or property of either, the Trustee shall have power to intervene
in such proceedings and take any action therein that may be permitted by the
court and shall (except as may be otherwise provided by law) be entitled to file
such proofs of claim and other papers and documents as may be necessary or
advisable in order to have the claims of the Trustee and of the holders of
Securities of such series allowed for the entire amount due and payable by the
Corporation or such other obligor under the Indenture at the date of institution
of such proceedings and for any additional amount which may become due and
payable by the Corporation or such other obligor after such date, and to collect
and receive any moneys or other property payable or deliverable on any such
claim, and to distribute the same after the deduction of the amount payable to
the Trustee under Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the holders of
Securities of such series to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of such payments directly to
such Securityholders, to pay to the Trustee any amount due it under Section
7.06.
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All rights of action and of asserting claims under this Indenture, or
under any of the terms established with respect to Securities of that series,
may be enforced by the Trustee without the possession of any of such Securities,
or the production thereof at any trial or other proceeding relative thereto, and
any such suit or proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall,
after provision for payment to the Trustee of any amounts due under Section
7.06, be for the ratable benefit of the holders of the Securities of such
series.
In case of an Event of Default hereunder the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in the Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities of that series or the rights of any holder thereof or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
SECTION 6.03. Any moneys collected by the Trustee, pursuant to Section
6.02 with respect to a particular series of Securities, shall be applied in the
order following, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest upon presentation of the several Securities of that series, and
stamping thereon the payment, if only partially paid,
and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and
of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of the amounts then due and unpaid upon
Securities of such series for principal (and premium, if any) and
interest, in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively.
SECTION 6.04. No holder of any Security of any series shall have any
right by virtue or by availing of any provision of this Indenture to institute
any suit, action or proceeding in equity or at law upon or under or with respect
to this Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless such holder previously shall have given to the
Trustee written notice of default and of the continuance thereof with respect to
Securities of such series specifying such default, as hereinbefore provided, and
unless also the holders of not less than 25% in aggregate principal amount of
the Securities of such series then outstanding shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name as
trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs,
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expenses and liabilities to be incurred therein or thereby, and the Trustee for
60 days after its receipt of such notice, request and offer of indemnity, shall
have failed to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by the taker and holder
of every Security of such series with every other such taker and holder and the
Trustee, that no one or more holders of Securities of such series shall have any
right in any manner whatever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of the holders of any other
of such Securities, or to obtain or seek to obtain priority over or preference
to any other such holder, or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable and common benefit of
all holders of Securities of such series. For the protection and enforcement of
the provisions of this Section , each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provisions of this Indenture, however, the
right of any holder of any Security to receive payment of the principal of (and
premium, if any) and interest on such Security, as therein provided, on or after
the respective due dates expressed in such Security, or to institute 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 6.05. All powers and remedies given by this Article to the
Trustee or to the Securityholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any others thereof or of any other powers
and remedies available to the Trustee or the holders of the Securities, by
judicial proceedings or otherwise, to enforce the performance or observance of
the covenants and agreements contained in this Indenture or otherwise
established with respect to such Securities, and no delay or omission of the
Trustee or of any holder of any of the Securities to exercise any right or power
accruing upon any default occurring and continuing as aforesaid, shall impair
any such right or power, or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to the provisions of Section
6.04, every power and remedy given by this Article or by law to the Trustee or
to the Securityholders may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee or by the Securityholders.
SECTION 6.06. The holders of a majority in aggregate principal amount
of the Securities of any series at the time outstanding, determined in
accordance with Section 8.04, shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee with respect to such
series; provided, however, that such direction shall not be in conflict with any
rule of law or with this Indenture or unduly prejudicial to the rights of
holders of Securities of any other series, at the time outstanding determined in
accordance with Section 8.04, not parties thereto. Subject to the provisions of
Section 7.01, the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a responsible officer or
officers of the Trustee, determine that the proceeding so directed would involve
the Trustee in personal liability. The holders of a majority in aggregate
principal amount of the Securities of any series at the time outstanding,
determined in accordance with Section 8.04, may on behalf of the holders of all
of the Securities of that series waive any past default in the performance of
any of the covenants contained herein or established pursuant to Section 2.01
with respect to such series and its consequences, except a default in the
payment of the principal of, or premium, if any, or interest on, any of the
Securities of that series as and when the same shall
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become due by the terms of such Securities or a call for redemption of
Securities of that series. Upon any such waiver, the default covered thereby
shall be deemed to be cured for all purposes of this Indenture and the
Corporation, the Trustee and the holders of the Securities of that series shall
be restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 6.07. The Trustee shall, within 90 days after the occurrence of
a default with respect to a particular series, transmit by mail, first class
postage prepaid, to the holders of Securities of that series, as their names and
addresses appear upon the Security register, notice of all defaults with respect
to that series known to the Trustee, unless such defaults shall have been cured
before the giving of such notice (the term "defaults" for the purposes of this
Section being hereby defined to be the events specified in subsections (a), (b),
(c), (d) and (e) of Section 6.01, not including any periods of grace provided
for therein and irrespective of the giving of notice provided for by subsection
(c) of Section 6.01); provided, that, except in the case of default in the
payment of the principal of (or premium, if any) or interest on any of the
Securities of that series or in the payment of any sinking fund installment
established with respect to that series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or responsible officers, of the
Trustee in good faith determine that the withholding of such notice is in the
interests of the Securityholders of Securities of that series, provided further,
that in the case of any default of the character specified in Section 6.01(c)
with respect to Securities of such series no such notice to the holders of the
Securities of that series shall be given until at least 30 days after the
occurrence thereof.
The Trustee shall not be deemed to have knowledge of any default,
except (i) a default under subsections (a) or (b) of Section 6.01 as long as the
Trustee is acting as paying agent for such series of Securities or (ii) any
default as to which the Trustee shall have received written notice or a
responsible officer charged with the administration of this Indenture shall have
obtained actual knowledge.
SECTION 6.08. All parties to this Indenture agree, and each holder of
any Securities by his or her acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, 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, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the
outstanding Securities of any series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to this
Indenture.
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ARTICLE SEVEN
Concerning the Trustee
SECTION 7.01. The Trustee, prior to the occurrence of an Event of
Default with respect to Securities of a series and after the curing of all
Events of Default with respect to Securities of that series which may have
occurred, undertakes to perform with respect to Securities of a series such
duties and only such duties as are specifically set forth in this Indenture, and
no implied covenants shall be read into this Indenture against the Trustee. In
case an Event of Default with respect to Securities of a series has occurred
(which has not been cured) the Trustee shall exercise with respect to Securities
of that series such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent individual
would exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to
Securities of a series and after the curing of all such Events of Default with
respect to that series which may have occurred:
(1) the duties and obligations of the Trustee shall with
respect to Securities of a series be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable with respect to
Securities of a series except for the performance of such duties and obligations
as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee,
the Trustee may with respect to Securities of a series conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a responsible officer or responsible officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
holders of not less than a majority in principal amount of the Securities of any
series at the time outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee under this Indenture with respect
to the Securities of that series; and
(d) None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
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of any of its rights or powers, if there is reasonable ground for believing that
the repayment of such funds or liability is not reasonably assured to it under
the terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
SECTION 7.02. Except as otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, security or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) Any request, direction, order or demand of the Corporation
mentioned herein shall be sufficiently evidenced by a Board Resolution or an
instrument signed in the name of the Corporation by the Chairman, any Vice
Chairman, the President or any Vice President and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer (unless other
evidence in respect thereof is specifically prescribed herein);
(c) The Trustee may consult with counsel and the advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted hereunder in
good faith and in reliance thereon;
(d) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby; nothing herein contained shall,
however, relieve the Trustee of the obligation, upon the occurrence of an Event
of Default with respect to a series of the Securities (which has not been cured)
to exercise with respect to Securities of that series such of the rights and
powers vested in it by this Indenture, and to use the same degree of care and
skill in their exercise, as a prudent individual would exercise or use under the
circumstances in the conduct of his own affairs;
(e) The Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture, or
other papers or documents, unless requested in writing so to do by the holders
of not less than a majority in principal amount of the outstanding Securities of
the particular series affected thereby (determined as provided in Section 8.04);
provided, however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding. The reasonable expense of every
such examination shall be paid by the Corporation or, if paid by the Trustee,
shall be repaid by the Corporation upon demand; and
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(g) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTlON 7.03. The recitals contained herein and in the Securities
(other than the certificate of authentication on the Securities) shall be taken
as the statements of the Corporation, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Corporation of any of
the Securities or of the proceeds of such Securities, or for the use or
application of any moneys paid over by the Trustee in accordance with any
provision of this Indenture or established pursuant to Section 2.01, or for the
use or application of any moneys received by any paying agent other than the
Trustee.
SECTION 7.04. The Trustee or any paying agent or Security registrar, in
its individual or any other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not Trustee, paying
agent or Security registrar.
SECTION 7.05. Subject to the provisions of Section 11.05, all moneys
received by the Trustee shall, until used or applied as herein provided, be held
in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any moneys received by it hereunder
except such as it may agree in writing with the Corporation to pay thereon.
SECTION 7.06. The Corporation covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, such
compensation as the Corporation and the Trustee shall from time to time agree in
writing (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by it
in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee, and the
Corporation will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from its negligence or bad faith. The Corporation also
covenants to indemnify the Trustee (and its officers, directors, agents and
employees) for, and to hold it harmless against, any and all loss, damage,
claim, liability or expense incurred without negligence or bad faith on the part
of the Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim of liability in the premises. As security for the
performance of the obligations of the Corporation under this Section 7.06, the
Trustee shall have a lien prior to that of the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust for
the benefit of the holders of particular Securities.
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SECTION 7.07. Except as otherwise provided in Section 7.01, whenever in
the administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the Trustee and
such certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted by it under the provisions of this Indenture upon the faith thereof.
SECTION 7.08. (a) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section , with respect to the Securities of any
series, within 90 days after ascertaining that it has such conflicting interest,
and if the Default to which such conflicting interest relates has not been
cured, duly waived or otherwise eliminated before the end of such 90-day period,
it shall either eliminate such conflicting interest, except as otherwise
provided herein, or resign with respect to the Securities of that series in the
manner and with the effect specified in Section 7.10 and the Corporation shall
promptly appoint a successor trustee in the manner provided herein.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section , with respect to the Securities of
any series the Trustee shall, within ten days after the expiration of such
90-day period, transmit notice of such failure by mail, first class postage
prepaid, to the Securityholders of that series as their names and addresses
appear upon the registration books.
(c) For the purposes of this Section the Trustee shall be deemed to
have a conflicting interest with respect to the Securities of any series if a
Default has occurred and is continuing and:
(1) the Trustee is trustee under this Indenture with respect
to the outstanding Securities of any series other than that series, or
is trustee under another indenture under which any other securities, or
certificates of interest or participation in any other securities, of
the Corporation are outstanding, unless such other indenture is a
collateral trust indenture under which the only collateral consists of
Securities issued under this Indenture, provided that there shall be
excluded from the operation of this paragraph the Securities of any
series other than that series and any other indenture or indentures
under which other securities, or certificates of interest or
participation in other securities, of the Corporation are outstanding
if (i) this Indenture and such other indenture or indentures and all
series of securities issuable thereunder, are wholly unsecured and rank
equally and such other indenture or indentures (and such series) are
hereafter qualified under the Trust Indenture Act of 1939, as amended,
unless the Securities and Exchange Commission shall have found and
declared by order pursuant to subsection (b) of Section 305 or
subsection (c) of Section 307 of the Trust Indenture Act of 1939, as
amended, that differences exist between (A) the provisions of this
Indenture with respect to Securities of that series and with respect to
one or more other series or (B) the provisions of this Indenture and
the provisions of such other indenture or indentures (or such series),
which are so
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likely to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of investors to
disqualify the Trustee from acting as such under this Indenture with
respect to the Securities of that series and such other series or such
other indenture or indentures, or (ii) the Corporation shall have
sustained the burden of proving, on application to the Securities and
Exchange Commission and after opportunity for hearing thereon, that the
trusteeship under this Indenture with respect to Securities of that
series and such other series or such other indenture or indentures is
not so likely to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of investors to
disqualify the Trustee from acting as such under this Indenture with
respect to Securities of that series and such other series or under
such other indentures; and provided further, that there shall be
excluded from the operation of this paragraph, (A) the Indenture dated
as of May 15, 1987, between GTE Corporation and The Bank of New York
(formerly Irving Trust Company), including any amendments thereto,
under which are outstanding 10 3/4% Sinking Fund Debentures Due 2017
and 10.30% Debentures Due 2017, (B) the Indenture dated as of January
15, 1991 between GTE Corporation and The Bank of New York, including
any amendments thereto, under which are outstanding 8.85% Debentures
Due 1998, (C) the Indenture dated May 1, 1991 between GTE Corporation
and The Bank of New York, including any amendments thereto, under which
are outstanding 9.10% Debentures Due 2003, 8 3/4% Debentures Due 2021
and 7.83% Debentures Due 2023, and (D) the Indenture dated June 1, 1994
between GTE Corporation and The Bank of New York, including any
amendments thereto, under which are outstanding 9 1/4% Junior
Subordinated Deferrable Interest Debentures, Series A, Due 2024, and 8
3/4% Junior Subordinated Deferrable Interest Debentures, Series B, Due
2025;
(2) the Trustee or any of its directors or executive officers
is an underwriter for the Corporation;
(3) the Trustee directly or indirectly controls or is directly
or indirectly controlled by or is under direct or indirect common
control with an underwriter for the Corporation;
(4) the Trustee or any of its directors or executive officers
is a director, officer, partner, employee, appointee, or representative
of the Corporation, or of an underwriter (other than the Trustee
itself) for the Corporation who is currently engaged in the business of
underwriting, except that (A) one individual may be a director and/or
an executive officer of the Trustee and a director and/or an executive
officer of the Corporation, but may not be at the same time an
executive officer of both the Trustee and the Corporation; (B) if and
so long as the number of directors of the Trustee in office is more
than nine, one additional individual may be a director and/or an
executive officer of the Trustee and a director of the Corporation; and
(C) the Trustee may be designated by the Corporation or by an
underwriter for the Corporation to act in the capacity of transfer
agent, registrar, custodian, paying agent, fiscal agent, escrow agent,
or depositary, or in any other similar capacity, or, subject to the
provisions of paragraph (1) of this subsection (c), to act as trustee
whether under an indenture or otherwise;
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(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Corporation or by any director,
partner, or executive officer thereof, or 20% or more of such voting
securities is beneficially owned, collectively, by any two or more of
such persons; or 10% or more of the voting securities of the Trustee is
beneficially owned either by an underwriter for the Corporation or by
any director, partner, or executive officer thereof, or is beneficially
owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection (c) defined), (A) 5% or more of the
voting securities, or 10% or more of any other class of security, of
the Corporation, not including the Securities issued under this
Indenture and securities issued under any other indenture under which
the Trustee is also trustee, or (B) 10% or more of any class of
security of an underwriter for the Corporation;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection (c) defined), 5% or more of the voting
securities of any person who, to the knowledge of the Trustee, owns 10%
or more of the voting securities of, or controls directly or indirectly
or is under direct or indirect common control with, the Corporation;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection (c) defined), 10% or more of any class
of security of any person who, to the knowledge of the Trustee, owns
50% or more of the voting securities of the Corporation
(9) the Trustee owns, on the date of a Default or any
anniversary of such Default while such Default upon the Securities
issued under this Indenture remains outstanding, in the capacity of
executor, administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an
aggregate of 25% or more of the voting securities, or of any class of
security, of any person, the beneficial ownership of a specified
percentage of which would have constituted a conflicting interest under
paragraph (6), (7), or (8) of this subsection (d). As to any such
securities of which the Trustee acquired ownership through becoming
executor, administrator, or testamentary trustee of an estate which
include them, the provisions of the preceding sentence shall not apply,
for a period of two years from the date of such acquisition, to the
extent that such securities included in such estate do not exceed 25%
of such voting securities or 25% of any such class of security.
Promptly after the dates of any such Default upon the Securities issued
under this Indenture and annually in each succeeding year that the
Securities issued under this Indenture remain in Default, the Trustee
shall make a check of its holding of such securities in any of the
above-mentioned capacities as of such dates.
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If the Corporation fails to make payment in full of principal of or
interest on any of the Securities when and as the same becomes due and
payable, and such failure continues for 30 days thereafter, the Trustee
shall make a prompt check of its holding of such securities in any of
the above-mentioned capacities as of the date of the expiration of such
30-day period, and after such date, notwithstanding the foregoing
provisions of this paragraph (9), all such securities so held by the
Trustee, with sole or joint control over such securities vested in it,
shall, but only so long as such failure shall continue, be considered
as though beneficially owned by the Trustee for the purposes of
paragraphs (6), (7) and (8) of this subsection (c); or
(10) except under the circumstances described in paragraphs
(1), (3), (4), (5) or (6) of subsection (b) of Section 7.13, the
Trustee shall be or shall become a creditor of the Corporation.
For purposes of paragraph (1) of this subsection (c), and of Sections
6.06 and 8.04, the term "series of securities" or "series" means a series, class
or group of securities issuable under an indenture pursuant to whose terms
holders of one such series may vote to direct the indenture trustee, or
otherwise take action pursuant to a vote of such holders, separately from
holders of another such series; provided, that "series of securities" or
"series" shall not include any series of securities issuable under an indenture
if all such series rank equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this subsection (c) shall not be construed as indicating that the ownership
of such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection (c).
For the purposes of paragraphs (6), (7), (8) and (9) of this subsection
(c) only, (A) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such note or
evidence of indebtedness; (B) an obligation shall be deemed to be in "default"
when a default in payment of principal shall have continued for thirty days or
more and shall not have been cured; and (C) the Trustee shall not be deemed to
be the owner or holder of (i) any security which it holds as collateral security
(as trustee or otherwise) for any obligation which is not in default as defined
in clause (B) above, or (ii) any security which it holds as collateral security
under this Indenture, irrespective of any Default hereunder, or (iii) any
security which it holds as agent for collection, or as custodian, escrow agent,
or depositary, or in any similar representative capacity.
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Except as above provided, the word "security" or "securities" as used
in this Indenture shall mean any note, stock, treasury stock, bond, debenture,
evidence of indebtedness, certificate of interest or participation in any
profit-sharing agreement, collateral-trust certificate, pre-organization
certificate or subscription, transferable share, investment contract,
voting-trust certificate, certificate of deposit for a security, fractional
undivided interest in oil, gas, or other mineral rights, or, in general, any
interest or instrument commonly known as a "security", or any certificate of
interest or participation in, temporary or interim certificate for, receipt for,
guarantee of, or warrant or right to subscribe to or purchase, any of the
foregoing.
(d) For the purposes of this Section :
(1) The term "underwriter" when used with reference to the
Corporation shall mean every person, who, within one year prior to the
time as of which the determination is made, has purchased from the
Corporation with a view to, or has offered or sold for the Corporation
in connection with, the distribution of any security of the Corporation
outstanding at such time, or has participated or has had a direct or
indirect participation in any such undertaking, or has participated or
has had a participation in the direct or indirect underwriting of any
such undertaking, but such term shall not include a person whose
interest was limited to a commission from an underwriter or dealer not
in excess of the usual and customary distributors' or sellers'
commission.
(2) The term "director" shall mean any member of the board of
directors of a corporation or any individual performing similar
functions with respect to any organization whether incorporated or
unincorporated.
(3) The term "person" shall mean an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization, or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only
a trust where the interest or interests of the beneficiary or
beneficiaries are evidenced by a security.
(4) The term "voting security" shall mean any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement or arrangement whereby a trustee or
trustees or agent or agents for the owner or holder of such security
are presently entitled to vote in the direction or management of the
affairs of a person.
(5) The term "Corporation" shall mean any obligor upon the
Securities.
(6) The term "executive officer" shall mean the president, every
vice president, every assistant vice president, every trust officer,
the cashier, the secretary, and the treasurer of a corporation, and any
individual customarily performing similar functions with respect to any
organization whether incorporated or unincorporated, but shall not
include the chairman of the board of directors.
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(e) The percentages of voting securities and other securities specified
in this Section shall be calculated in accordance with the following provisions:
(1) A specified percentage of the voting securities of the
Trustee, the Corporation or any other person referred to in this
Section (each of whom is referred to as a "person" in this paragraph)
means such amount of the outstanding voting securities of such person
as entitles the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person.
(2) A specified percentage of a class of securities of a person
means such percentage of the aggregate amount of securities of the
class outstanding.
(3) The term "amount", when used in regard to securities, means
the principal amount if relating to evidences of indebtedness, the
number of shares if relating to capital shares, and the number of units
if relating to any other kind of security.
(4) The term "outstanding" means issued and not held by or for
the account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class.
(ii) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation
evidenced by such other class of securities is not in default as
to principal or interest or otherwise.
(iii) securities pledged by the issuer thereof as security for
an obligation of the issuer not in default as to principal or
interest or otherwise.
(iv) securities held in escrow if placed in escrow by the issuer
thereof.
Provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; provided,
however, that, in the case of secured evidences of indebtedness, all of
which are issued under a single indenture, differences in the interest
rates or maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes and provided
further, that, in the case of unsecured evidences of indebtedness,
differences in the interest rates or maturity dates thereof shall not
be deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single indenture.
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(f) Except in the case of a default in the payment of the principal of
or interest on any Securities issued under this Indenture, or in the payment of
any sinking or analogous fund installment, the Trustee shall not be required to
resign as provided by this Section 7.08 if such Trustee shall have sustained the
burden of proving, on application to the Securities and Exchange Commission and
after opportunity for hearing thereon, that (i) the default under the Indenture
may be cured or waived during a reasonable period and under the procedures
described in such application, and (ii) a stay of the Trustee's duty to resign
will not be inconsistent with the interest of Securityholders. The filing of
such an application shall automatically stay the performance of the duty to
resign until the Securities and Exchange Commission orders otherwise.
Any resignation of the Trustee shall become effective only upon the
appointment of a successor trustee and such successor's acceptance of such an
appointment.
SECTION 7.09. There shall at all times be a Trustee with respect to the
Securities issued hereunder which shall at all times be a corporation organized
and doing business under the laws of the United States or any State or Territory
or of the District of Columbia, or a corporation or other person permitted to
act as trustee by the Securities and Exchange Commission, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least fifty million dollars, and subject to supervision or examination by
Federal, State, Territorial, or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section , the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. The Corporation may not,
nor may any person directly or indirectly controlling, controlled by, or under
common control with the Corporation, serve as Trustee. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section , the Trustee shall resign immediately in the manner and with the effect
specified in Section 7.10.
SECTION 7.10. (a) The Trustee or any successor hereafter appointed, may
at any time resign with respect to the Securities of one or more series by
giving written notice thereof to the Corporation and by transmitting notice of
resignation by mail, first class postage prepaid, to the Securityholders of such
series, as their names and addresses appear upon the Security register. Upon
receiving such notice of resignation, the Corporation shall promptly appoint a
successor trustee with respect to Securities of such series by written
instrument, in duplicate, executed by order of the Board of Directors of the
Corporation, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee with
respect to Securities of such series, or any Securityholder of that series who
has been a bona fide holder of a Security or Securities for at least six months
may, subject to the provisions of Section 6.08, on behalf of himself and all
others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as it may
deem proper and prescribe, appoint a successor trustee.
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(b) In case at any time any of the following shall occur--
(1) the Trustee shall fail to comply with the provisions of
subsection (a) of Section 7.08 after written request therefor by the
Corporation or by any Securityholder who has been a bona fide holder of
a Security or Securities for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 7.09 and shall fail to resign after written
request therefor by the Corporation or by any such Securityholder of
Securities, or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, the Corporation may remove the Trustee with respect to
all Securities and appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors of the Corporation, one
copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee, or, subject to the provisions of Section 6.08,
unless the Trustee's duty to resign is stayed as provided herein, any
Securityholder who has been a bona fide holder of a Security or Securities for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities of any series at the time outstanding may at any time remove the
Trustee with respect to such series and appoint a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Securities of a series pursuant to any of
the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section may be
appointed with respect to the Securities of one or more series or all of such
series, and at any time there shall be only one Trustee with respect to the
Securities of any particular series.
SECTION 7.11. (a) In case of the appointment hereunder of a successor
trustee with respect to all Securities, every such successor trustee so
appointed shall execute, acknowledge and deliver to the Corporation and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights powers, trusts and duties of the retiring Trustee;
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but, on the request of the Corporation or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers, and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee with
respect to the Securities of one or more (but not all) series, the Corporation,
the retiring Trustee and each successor trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust, that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee and that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein,
such retiring Trustee shall with respect to the Securities of that or those
series to which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture, and each such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor trustee relates; but, on request of
the Corporation or any successor trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor trustee, to the extent
contemplated by such supplemental indenture, the property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee, the Corporation shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section , as the case may be.
(d) No successor trustee shall accept its appointment unless at the
time of such acceptance such successor trustee shall be qualified and eligible
under this Article.
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(e) Upon acceptance of appointment by a successor trustee as provided
in this Section , the Corporation shall transmit notice of the succession of
such trustee hereunder by mail, first class postage prepaid, to the
Securityholders, as their names and addresses appear upon the Security register.
If the Corporation fails to transmit such notice within ten days after
acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be transmitted at the expense of the Corporation.
SECTION 7.12. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be qualified under the provisions of Section 7.08 and eligible
under the provisions of Section 7.09, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
Trustee by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities.
SECTION 7.13. (a) Subject to the provisions of subsection (b) of this
Section , if the Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Corporation within three months prior
to a default, as defined in subsection (c) of this Section , or subsequent to
such a default, then, unless and until such default shall be cured, the Trustee
shall set apart and hold in a special account for the benefit of the Trustee
individually, the holders of the Securities and the holders of other indenture
securities (as defined in subsection (c) of this Section )
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such three months' period
and valid as against the Corporation and its other creditors, except
any such reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subsection, or from the
exercise of any right of set-off which the Trustee could have
exercised if a petition in bankruptcy had been filed by or against the
Corporation upon the date of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three months' period, or an amount equal to the proceeds of
any such property, if disposed of, subject, however, to the rights, if
any, of the Corporation and its other creditors in such property or
such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee,
(A) to retain for its own account (i) payments made on account
of any such claim by any person (other than the Corporation) who is
liable thereon, and (ii) the proceeds of the bona fide sale of any such
claim
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by the Trustee to a third person, and (iii) distributions made in cash,
securities, or other property in respect of claims filed against the
Corporation in bankruptcy or receivership or in a case for
reorganization pursuant to the Federal Bankruptcy Code or applicable
State law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such three months' period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to believe
that a default, as defined in subsection (c) of this Section , would
occur within three months; or
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property held as security for
such claim as provided in such paragraph (B) or (C), as the case may
be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the Securityholders and the holders of other indenture
securities in such manner that the Trustee, the Securityholders and the holders
of other indenture securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the Corporation in
bankruptcy or receivership or in a case for reorganization pursuant to the
Federal Bankruptcy Code or applicable State law, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee anything
on account of the receipt by it from the Corporation of the funds and property
in such special account and before crediting to the respective claims of the
Trustee, the Securityholders and the holders of other indenture securities
dividends on claims filed against the Corporation in bankruptcy or receivership
or in a case for reorganization pursuant to the Federal Bankruptcy Code or
applicable State law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or in a case for reorganization pursuant to the
Federal Bankruptcy Code or applicable State law, whether such distribution is
made in cash, securities, or other property, but shall not include any such
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distribution with respect to the secured portion, if any, of such claim. The
court in which such bankruptcy, receivership or a case for reorganization is
pending shall have jurisdiction (i) to apportion between the Trustee, the
Securityholders and the holders of other indenture securities, in accordance
with the provisions of this paragraph, the funds and property held in such
special account and the proceeds thereof, or (ii) in lieu of such apportionment,
in whole or in part, to give to the provisions of this paragraph due
consideration in determining the fairness of the distributions to be made to the
Trustee, the Securityholders and the holders of other indenture securities with
respect to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee who has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this subsection
(a) as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which would
have given rise to the obligation to account, if such Trustee had
continued as trustee, occurred after the beginning of such three
months' period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of
this Section a creditor relationship arising from
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction, or by this Indenture, for the purpose of
preserving any property other than cash which shall at any time be
subject to the lien, if any, of this Indenture or of discharging tax
liens or other prior liens or encumbrances thereon, if notice of such
advance and of the circumstances surrounding the making thereof is
given to the Securityholders at the time and in the manner provided in
this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, subscription agent, fiscal agent or
depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered
or premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of
this Section ;
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(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Corporation; or
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c) of this Section .
(c) As used in this Section :
(1) The term "default" shall mean any failure to make payment
in full of the principal of or interest upon any of the Securities or
upon the other indenture securities when and as such principal or
interest becomes due and payable.
(2) The term "other indenture securities" shall mean
securities upon which the Corporation is an obligor (as defined in the
Trust Indenture Act of 1939) outstanding under any other indenture (A)
under which the Trustee is also trustee, (B) which contains provisions
substantially similar to the provisions of subsection (a) of this
Section , and (C) under which a default exists at the time of the
apportionment of the funds and property held in said special account.
(3) The term "cash transaction" shall mean any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" shall mean any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Corporation for the purpose of financing
the purchase, processing, manufacture, shipment, storage or sale of
goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Corporation arising
from the making, drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation.
(5) The term "Corporation" shall mean any obligor upon any of
the Securities.
ARTICLE EIGHT.
Concerning the Securityholders
SECTION 8.01. Whenever in this Indenture it is provided that the
holders of a majority or specified percentage in aggregate principal amount of
the Securities of a particular series may take any action (including the making
of any demand or request, the giving of any notice, consent or waiver
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or the taking of any other action) the fact that at the time of taking any such
action the holders of such majority or specified percentage of that series have
joined therein may be evidenced by any instrument or any number of instruments
of similar tenor executed by such holders of Securities of that series in person
or by agent or proxy appointed in writing.
If the Corporation shall solicit from the Securityholders of any series
any request, demand, authorization, direction, notice, consent, waiver or other
action, the Corporation may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Corporation shall
have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other action may be
given before or after the record date, but only the Securityholders of record at
the close of business on the record date shall be deemed to be Securityholders
for the purposes of determining whether Securityholders of the requisite
proportion of outstanding Securities of that series have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the outstanding Securities of that
series shall be computed as of the record date; provided that no such
authorization, agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
SECTION 8.02. Subject to the provisions of Section 7.01, proof of the
execution of any instrument by a Securityholder (such proof will not require
notarization) or his agent or proxy and proof of the holding by any person of
any of the Securities shall be sufficient if made in the following manner:
The fact and date of the execution by any such person of any instrument
may be proved in any reasonable manner acceptable to the Trustee.
The ownership of Securities shall be proved by the Security register of
such Securities or by a certificate of the Security registrar thereof.
The Trustee may require such additional proof of any matter referred to
in this Section as it shall deem necessary.
SECTION 8.03. Prior to the due presentment for registration of transfer
of any Security, the Corporation, the Trustee, any paying agent and any Security
registrar may deem and treat the person in whose name such Security shall be
registered upon the books of the Corporation as the absolute owner of such
Security (whether or not such Security shall be overdue and notwithstanding any
notice of ownership or writing thereon made by anyone other than the Security
registrar) for the purpose of receiving payment of or on account of the
principal of, premium, if any, and (subject to Section 2.03) interest on such
Security and for all other purposes; and neither the Corporation nor the Trustee
nor any paying agent nor any Security registrar shall be affected by any notice
to the contrary.
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SECTION 8.04. In determining whether the holders of the requisite
aggregate principal amount of Securities of a particular series have concurred
in any direction, consent or waiver under this Indenture, Securities of that
series which are owned by the Corporation or any other obligor on the Securities
of that series or by any person directly or indirectly controlling or controlled
by or under common control with the Corporation or any other obligor on the
Securities of that series shall be disregarded and deemed not to be outstanding
for the purpose of any such determination, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver only Securities of such series which the Trustee
knows are so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as outstanding for the purposes of this
Section , if the pledgee shall establish to the satisfaction of the Trustee the
pledgee's right to vote such Securities and that the pledgee is not a person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Corporation or any such other obligor. In case of a
dispute as to such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee.
SECTION 8.05. At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 8.01, of the taking of any action by the
holders of the majority or percentage in aggregate principal amount of the
Securities of a particular series specified in this Indenture in connection with
such action, any holder of a Security of that series which is shown by the
evidence to be included in the Securities the holders of which have consented to
such action may, by filing written notice with the Trustee, and upon proof of
holding as provided in Section 8.02, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the holder of any
Security shall be conclusive and binding upon such holder and upon all future
holders and owners of such Security, and of any Security issued in exchange
therefor or in place thereof, irrespective of whether or not any notation in
regard thereto is made upon such Security. Any action taken by the holders of
the majority or percentage in aggregate principal amount of the Securities of a
particular series specified in this Indenture in connection with such action
shall be conclusively binding upon the Corporation, the Trustee and the holders
of all the Securities of that series.
SECTION 8.06 Whenever this Indenture provides for (i) any action by, or
the determination of any of the rights of, holders of Securities of any series
in which not all of such Securities are denominated in the same coin or
currency, or (ii) any distribution to holders of Securities, in the absence of
any provision to the contrary in this Indenture, the form of Security of any
particular series or the Board Resolution and accompanying Officers' Certificate
establishing such series, any amount in respect of any Security denominated in a
coin or currency other than Dollars shall be computed for any such action or
distribution by converting such coin or currency into Dollars based upon the
rate of exchange in effect at the office of (a) a major financial institution
chosen by the Trustee or (b) the Trustee in New York, New York, in each case as
of the record date of such series (if any) for such action, determination of
rights or distribution (or, if there shall be no applicable record date, such
other date reasonably proximate to the date of such action, determination of
rights or distribution), as the Corporation may specify in a written notice to
the Trustee or, in the absence of such written notice, as the Trustee may
determine.
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ARTICLE NINE.
Supplemental Indentures.
SECTION 9.01. In addition to any supplemental indenture otherwise
authorized by this Indenture the Corporation, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as then in effect), without the
consent of the Securityholders, for one or more of the following purposes:
(a) to evidence the succession of another corporation to the
Corporation, and the assumption by any such successor of the covenants
of the Corporation contained herein or otherwise established with
respect to the Securities; or
(b) to add to the covenants of the Corporation such further
covenants, restrictions, conditions or provisions for the protection of
the holders of the Securities of all or any series as the Board of
Directors of the Corporation and the Trustee shall consider to be for
the protection of the holders of Securities of all or any series, and
to make the occurrence, or the occurrence and continuance, of a default
in any of such additional covenants, restrictions, conditions or
provisions a default or an Event of Default with respect to such series
permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that
in respect of any such additional covenant, restriction, condition or
provision such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of
the holders of a majority in aggregate principal amount of the
Securities of such series to waive such default; or
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make such other provisions in
regard to matters or questions arising under this Indenture as shall
not be inconsistent with the provisions of this Indenture and shall not
adversely affect the interests of the holders of the Securities of any
series; or
(d) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision.
The Trustee is hereby authorized to join with the Corporation in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations which may be therein contained, but the
Trustee 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.
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Any supplemental indenture authorized by the provisions of this Section
may be executed by the Corporation and the Trustee without the consent of the
holders of any of the Securities at the time outstanding, notwithstanding any of
the provisions of Section 9.02.
SECTION 9.02. With the consent (evidenced as provided in Section 8.01)
of the holders of not less than a majority in aggregate principal amount of the
Securities of each series affected by such supplemental indenture or indentures
at the time outstanding, the Corporation, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as then in effect) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of such supplemental indenture or of modifying in any manner
the rights of the holders of the Securities of such series under this Indenture;
provided, however, that no such supplemental indenture shall (i) extend the
fixed maturity of any Securities of any series, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest thereon,
or reduce any premium payable upon the redemption thereof, without the consent
of the holder of each Security so affected, or (ii) reduce the aforesaid
percentage of Securities, the holders of which are required to consent to any
such supplemental indenture, without the consent of the holders of each Security
then outstanding and affected thereby.
Upon the request of the Corporation, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders required
to consent thereto as aforesaid, the Trustee shall join with the Corporation in
the execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders of any
series affected thereby under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Corporation and the Trustee of any
supplemental indenture pursuant to the provisions of this Section , the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in
general terms the substance of such supplemental indenture, to the
Securityholders of all series affected thereby as their names and addresses
appear upon the Security register. Any failure of the Trustee 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. Upon the execution of any supplemental indenture pursuant
to the provisions of this Article or of Section 10.01, this Indenture shall,
with respect to such series, be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Corporation and the holders of Securities of the series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
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SECTION 9.04. Securities of any series, affected by a supplemental
indenture, authenticated and delivered after the execution of such supplemental
indenture pursuant to the provisions of this Article or of Section 10.01, may
bear a notation in form approved by the Trustee, provided such form meets the
requirements of any exchange upon which such series may be listed, as to any
matter provided for in such supplemental indenture. If the Corporation or the
Trustee shall so determine, new Securities of that series so modified as to
conform, in the opinion of the Trustee and the Board of Directors of the
Corporation, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Corporation, authenticated by the
Trustee and delivered in exchange for the Securities of that series then
outstanding.
SECTION 9.05. The Trustee, subject to the provisions of Section 7.01,
may receive an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article is authorized or permitted by, and
conforms to, the terms of this Article and that it is proper for the Trustee
under the provisions of this Article to join in the execution thereof.
ARTICLE TEN.
Consolidation, Merger and Sale.
SECTION 10.01. Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the Corporation with or
into any other corporation or corporations (whether or not affiliated with the
Corporation), or successive consolidations or mergers in which the Corporation
or its successor or successors shall be a party or parties, or shall prevent any
sale, conveyance, transfer or other disposition of the property of the
Corporation or its successor or successors as an entirety, or substantially as
an entirety, to any other corporation (whether or not affiliated with the
Corporation or its successor or successors) authorized to acquire and operate
the same; provided, however, and the Corporation hereby covenants and agrees
that, upon any such consolidation, merger, sale, conveyance, transfer or other
disposition, the due and punctual payment of the principal of (premium, if any)
and interest on all of the Securities of all series in accordance with the terms
of each series, according to their tenor, and the due and punctual performance
and observance of all the covenants and conditions of this Indenture with
respect to each series to be kept or performed by the Corporation, shall be
expressly assumed, by supplemental indenture (which shall conform to the
provisions of the Trust Indenture Act of 1939 as then in effect) satisfactory in
form to the Trustee executed and delivered to the Trustee by the corporation
formed by such consolidation, or into which the Corporation shall have been
merged, or by the corporation which shall have acquired such property.
SECTION 10.02. In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual payment
of the principal of, premium, if any, and interest on all of the Securities of
all series outstanding and the due and punctual performance of all of the
covenants and conditions of this Indenture or established with respect to each
series of the Securities pursuant to Section 2.01 to be performed by the
Corporation with respect to each series, such successor
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<PAGE> 68
corporation shall succeed to and be substituted for the Corporation, with the
same effect as if it had been named herein as the party of the first part. Such
successor corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of the Corporation or any other predecessor obligor
on the Securities any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Corporation and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the
Corporation, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Corporation to the Trustee for authentication, and any Securities which
such successor corporation thereafter shall cause to be signed and delivered to
the Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, conveyance, transfer
or other disposition such changes in phraseology and form (but not in substance)
may be made in the Securities thereafter to be issued as may be appropriate.
Nothing contained in this Indenture or in any of the Securities shall
prevent the Corporation from merging into itself or acquiring by purchase or
otherwise all or any part of the property of any other corporation (whether or
not affiliated with the Corporation).
SECTION 10.03. The Trustee, subject to the provisions of Section 7.01,
may receive an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, conveyance, transfer or other disposition, and any
such assumption, comply with the provisions of this Article.
ARTICLE ELEVEN.
Satisfaction and Discharge of Indenture;
Unclaimed Moneys.
SECTION 11.01. If at any time: (a) the Corporation shall have delivered
to the Trustee for cancellation all Securities of a series theretofore
authenticated (other than any Securities which shall have been destroyed, lost
or stolen and which shall have been replaced or paid as provided in Section
2.07) and Securities for whose payment money or Governmental Obligations has
theretofore been deposited in trust or segregated and held in trust by the
Corporation (and thereupon repaid to the Corporation or discharged from such
trust, as provided in Section 11.05); or (b) all such Securities of a particular
series not theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the
Corporation shall deposit or cause to be deposited with the Trustee as trust
funds the entire amount in moneys or Governmental Obligations sufficient; or (c)
a combination thereof, sufficient, without reinvestment, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay at maturity or
upon redemption all Securities of that
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<PAGE> 69
series not theretofore delivered to the Trustee for cancellation, including
principal (and premium, if any) and interest due or to become due to such date
of maturity or date fixed for redemption, as the case may be, and if the
Corporation shall also pay or cause to be paid all other sums payable hereunder
with respect to such series by the Corporation, then this Indenture shall
thereupon cease to be of further effect with respect to such series except for
the provisions of Sections 2.05, 2.07, 4.02 and 7.10, which shall survive until
the date of maturity or redemption date, as the case may be, and Sections 7.06
and 11.05 which shall survive to such date and thereafter, and the Trustee, on
demand of the Corporation and at the cost and expense of the Corporation, shall
execute proper instruments acknowledging satisfaction of and discharging this
Indenture with respect to such series.
SECTION 11.02 If at any time all such Securities of a particular series
not heretofore delivered to the Trustee for cancellation or which have not
become due and payable as described in Section 11.01 shall have been paid by the
Corporation by depositing irrevocably with the Trustee as trust funds moneys or
an amount of Governmental Obligations sufficient to pay at maturity or upon
redemption all Securities of that series not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if any) and interest
due or to become due to such date of maturity or date fixed for redemption, as
the case may be, and if the Corporation shall also pay or cause to be paid all
other sums payable hereunder by the Corporation with respect to such series,
then after the date such moneys or Governmental Obligations, as the case may be,
are deposited with the Trustee the obligations of the Corporation under this
Indenture with respect to such series shall cease to be of further effect except
for the provisions of Sections 2.05, 2.07, 4.02, 7.06, 7.10 and 11.05 hereof
which shall survive until such Securities shall mature and be paid. Thereafter,
Sections 7.06 and 11.05 shall survive.
SECTION 11.03. All moneys or Governmental Obligations deposited with
the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall
be available for payment as due, either directly or through any paying agent
(including the Corporation acting as its own paying agent), to the holders of
the particular series of Securities for the payment or redemption of which such
moneys or Governmental Obligations have been deposited with the Trustee.
SECTION 11.04. In connection with the satisfaction and discharge of
this Indenture all moneys or Governmental Obligations then held by any paying
agent under the provisions of this Indenture shall, upon demand of the
Corporation, be paid to the Trustee and thereupon such paying agent shall be
released from all further liability with respect to such moneys or Governmental
Obligations.
SECTION 11.05. Any moneys or Governmental Obligations deposited with
any paying agent or the Trustee for payment of principal of or premium or
interest on the Securities of a particular series that are not applied but
remain unclaimed by the holders of such Securities for at least two years after
the date upon which the principal of (and premium, if any) or interest on such
Securities shall have respectively become due and payable, shall be repaid to
the Corporation on May 31 of each year; and thereupon the paying agent and the
Trustee shall be released from all further liability with respect to such moneys
or Governmental Obligations, and the holder of any of the Securities entitled to
receive such payment shall thereafter look only to the Corporation for the
payment thereof.
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<PAGE> 70
ARTICLE TWELVE.
Immunity of Incorporators, Stockholders, Officers
and Directors.
SECTION 12.01. No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, past, present or future as such, of the
Corporation or of any predecessor or successor corporation, either directly or
through the Corporation or any such predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever shall attach
to, or is or shall be incurred by, the incorporators, stockholders, officers or
directors as such, of the Corporation or of any predecessor or successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom;
and that any and all such personal liability of every name and nature, either at
common law or in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, stockholder, officer or
director as such, because of the creation of the indebtedness hereby authorized,
or under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Securities.
ARTICLE THIRTEEN.
Sundry Provisions.
SECTION 13.01. All the covenants, stipulations, promises and agreements
in this Indenture contained by or in behalf of the Corporation shall bind its
successors and assigns, whether so expressed or not.
SECTION 13.02. Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Corporation shall and may be done and performed with like force
and effect by the corresponding board, committee or officer of any corporation
that shall at the time be the lawful sole successor of the Corporation.
SECTION 13.03. The Corporation by instrument in writing executed by
authority of two-thirds of its Board of Directors and delivered to the Trustee
may surrender any of the powers reserved to the Corporation and thereupon such
power so surrendered shall terminate both as to the Corporation and as to any
successor corporation.
SECTION 13.04. Except as otherwise expressly provided herein any notice
or demand which by any provision of this Indenture is required or permitted to
be given or served by the Trustee or by the holders of Securities to or on the
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<PAGE> 71
Corporation may be given or served by being deposited postage prepaid in a
post-office letterbox addressed (until another address is filed in writing by
the Corporation with the Trustee), as follows: GTE Corporation, One Stamford
Forum, Stamford, Connecticut 06904, Attention: Secretary. Any notice, election,
request or demand by the Corporation or any Securityholder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made in writing at the Corporate Trust Office of the
Trustee.
Except as otherwise expressly provided herein, any notice which by any
provision of this Indenture is required or permitted to be given or served by
the Company or by the Trustee to or on any Securityholder may be given or served
by being deposited, postage prepaid, in a post-office letterbox addressed to
such holder at his or her address as it appears in the Security register.
Neither the failure to mail any such notice, nor any defect in any notice so
mailed, to any particular Securityholder shall affect the sufficiency of such
notice with respect to other Securityholders.
SECTION 13.05. This Indenture and each Security shall be deemed to be a
contract made under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State, without regard to
conflicts of laws principles.
SECTION 13.06. Upon any application or demand by the Corporation to the
Trustee to take any action under any of the provisions of this Indenture, the
Corporation shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent required of the Corporation provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
in this Indenture (other than the Certificate provided pursuant to Section
5.03(d) of 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 (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
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<PAGE> 72
SECTION 13.07. In any case where the date of maturity of interest or
principal of any Security or the date of redemption of any Security shall not be
a business day then payment of interest or principal (and premium, if any) may
be made on the next succeeding business day with the same force and effect as if
made on the nominal date of maturity or redemption, and no interest shall accrue
for the period after such nominal date.
SECTION 13.08. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act of 1939, as amended, such imposed
duties shall control.
SECTION 13.09. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 13.10. In case any one or more of the provisions contained in
this Indenture or in the Securities of any series shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Indenture or of such Securities, but this Indenture and such Securities shall be
construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.
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<PAGE> 73
THE BANK OF NEW YORK hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and the Corporation's corporate seal to be hereunto affixed and
attested, all as of the day and year first above written.
GTE CORPORATION
By DAN J. COHRS
---------------------------------
Dan J. Cohrs
CORPORATE SEAL
Attest:
By MARIANNE DROST
---------------------------------
Marianne Drost
THE BANK OF NEW YORK
as Trustee
By MARY JANE MORRISSEY
---------------------------------
Mary Jane Morrissey
CORPORATE SEAL
Attest:
By PAUL J. SCHMALZEL
---------------------------------
Paul J. Schmalzel
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<PAGE> 74
STATE OF CONNECTICUT)
ss: Stamford
COUNTY OF FAIRFIELD )
On the 8th day of January, in the year one thousand nine hundred
ninety-seven, before me personally came Dan J. Cohrs to me known, who, being by
me duly sworn, did depose and say that he resides at 5 Shields Lane, Darien, CT
06820; that he is Vice President and Treasurer of GTE CORPORATION, one of the
corporations described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto by
like authority.
SUSAN J. GUARCELLO
----------------------------------
Susan J. Guarcello
NOTARY PUBLIC
My Commission Expires June 30, 2001
NOTARIAL SEAL
STATE OF NEW YORK )
ss: New York
COUNTY OF NEW YORK )
On the 6th day of January, in the year one thousand nine hundred
ninety-seven, before me personally came Mary Jane Morrissey, to me known, who,
being by me duly sworn, did depose and say that she resides at 1320 Sunrise
Avenue, Pt. Pleasant, NJ, that she is Vice President of THE BANK OF NEW YORK,
one of the corporations described in and which executed the above instrument;
that she knows the corporate seal of said corporation; that it was so affixed by
authority of the Board of said corporation; and that she signed her name thereto
by like authority.
WILLIAM J. CASSELS
----------------------------------
William J. Cassels
NOTARY PUBLIC
My Commission Expires May 16, 1998
NOTARIAL SEAL
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<PAGE> 1
- -----------------------------------------------------------------------------
GTE CORPORATION
AND
THE BANK OF NEW YORK,
as Trustee
-------------
SUPPLEMENTAL INDENTURE
Dated as of ______, 199__
TO
INDENTURE
Dated as of December 1, 1996
-------------
%______ Due
- -----------------------------------------------------------------------------
<PAGE> 2
______________________ SUPPLEMENTAL INDENTURE, dated as of the ______
day of ______, 199_, between GTE CORPORATION, a corporation duly organized and
existing under the laws of the State of New York (hereinafter sometimes referred
to as the "Corporation"), and THE BANK OF NEW YORK, a banking corporation duly
organized and existing under the laws of the State of New York (hereinafter
sometimes referred to as the "Trustee"), as Trustee under the Indenture dated as
of December 1, 1996 between the Corporation and the Trustee, as supplemented,
including by this Supplemental Indenture (said Indenture as so supplemented
being hereinafter referred to as the "Indenture").
WHEREAS, the Corporation executed and delivered the Indenture to the
Trustee to provide for the future issuance of its securities (the "Securities")
in an unlimited amount, said Securities to be issued from time to time in
series as might be determined by the Corporation under the Indenture, and
WHEREAS, pursuant to the terms of the Indenture, the Corporation
desires to provide for the establishment of a new series of its Securities to be
known as its ______% ______ Due ______ (said series being hereinafter referred
to as the "______"), the form and substance of such ______ and the terms,
provisions and conditions thereof to be as set forth and provided in the
Indenture as supplemented hereby; and
WHEREAS, the Corporation desires and has requested the Trustee to join
with it in the execution and delivery of this ______ Supplemental Indenture, and
all requirements necessary to make this ______ Supplemental Indenture a valid
instrument, in accordance with its terms, and to make the ______, when executed
by the Corporation and authenticated and delivered by the Trustee, the valid
obligations of the Corporation have been performed and fulfilled, and the
execution and delivery hereof have been in all respects duly authorized:
NOW, THEREFORE, in consideration of the purchase and acceptance of the
by the holders thereof, and for the purpose of setting forth, as provided in the
Indenture, the form and substance of the ______ and the terms, provisions and
conditions thereof, the Corporation covenants and agrees with the Trustee as
follows:
ARTICLE ONE.
Terms And Conditions Of
% ______ Due
SECTION l.0l. There shall be and is hereby authorized a series of
Securities designated ______% ______ Due ______ , limited to the aggregate
principal amount of $_,000,000 (subject to Section 2.07 of the
______Indenture),*** said Securities being sometimes herein referred to as the
____________. The ______ shall mature on ______, ______ and shall be issued in
the form of registered _____________ without coupons. (The ______ shall be in
denominations of
- -----------------
*** Substitute foreign currency if denominated in other than U.S. dollars.
<PAGE> 3
$l,000 or any multiples thereof.)* (The ______ shall ______ be issued in the
form of a Global Security denominated in an amount equal to the aggregate
principal amount of the ______ . The Depository for the ______ shall be
______.)** The ______ shall bear interest until the principal thereof becomes
due and payable at the rate of ______% per annum, payable semi-annually on
______ and ______ in each year, and any overdue principal and premium, if any,
and (to the extent that the payment of such interest is enforceable under
applicable law) any overdue installment of interest thereon shall bear interest
at the same rate per annum; the principal of, the premium, if any, and the
interest on said ______ shall be payable in any coin or currency of the United
States of America which at the time of payment is legal tender for the payment
of public and private debts, at the office or agency of the Corporation in the
Borough of Manhattan, The City and State of New York.
The regular record date with respect to any Interest Payment Date for
the ________ shall mean the ______ or ______ , as the case may be, next
preceding such Interest Payment Date, whether or not such ______ or ______ is
a business day.
In the event that any ______ is called for redemption and the
redemption date is subsequent to a regular record date with respect to any
Interest Payment Date and prior to such Interest Payment Date, interest on such
______ will be paid upon presentation and surrender of such as provided in
Section 3.03 of the Indenture.
The Corporation may redeem (subject to the provisions of Article Three
of the Indenture) the ______ issued hereunder on and after ______, and before
maturity, as a whole or from time to time in part, at its option, at 100% of the
principal amount to be redeemed, together with accrued interest to the date
fixed for redemption.
The ______ and the Trustee's Certificate to be endorsed thereon are to
be substantially in the following forms:
(FORM OF FACE OF ______ )
(Except as otherwise provided in Section 2.11 of the Indenture, this Global
Security may be transferred, in whole but not in part, only to another nominee
of the Depository or to a successor Depository or to a nominee of such successor
Depository.)**
- ---------------
* Insert the language that is in parentheses only if a Global Security is not
used and the issue is denominated in U.S. dollars.
** Insert the language that is in parentheses if a Global Security is used.
-2-
<PAGE> 4
No. ______ $ ______
GTE CORPORATION
____ % ______ DUE _________________ CUSIP NO. _______
GTE CORPORATION, a corporation duly organized and existing under the laws of the
State of New York (herein referred to as the "Corporation"), for value received,
hereby promises to pay to ______ or registered assigns, the principal sum of
______ Dollars *** on ______, ______, and to pay interest on said principal sum
from ______ , ______ or from the most recent interest payment date to which
interest has been paid or duly provided for, semi-annually on ______ and ______
in each year at the rate of ______% per annum until the principal hereof shall
have become due and payable, and on any overdue principal (and premium, if any)
and (to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the same rate per annum. The
interest installment so payable, and punctually paid or duly provided for, on
any interest payment date will, as provided in the Indenture hereinafter
referred to, be paid to the person in whose name this ______ (or one or more
Predecessor Securities, as defined in said Indenture) is registered at the close
of business on the regular record date for such interest installment, which
shall be the ______ or ______, as the case may be (whether or not a business
day), next preceding such interest payment date. Any such interest installment
not punctually paid or duly provided for shall forthwith cease to be payable to
the registered holder on such regular record date, and may be paid to the person
in whose name this ______ (or one or more Predecessor Securities) is registered
at the close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
registered holders of this series of ______ not less than 10 days prior to such
special record date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
______ may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture hereinafter referred to. The
principal of and premium, if any, and the interest on this ______ shall be
payable at the office or agency of the Corporation maintained for that purpose
in the Borough of Manhattan, The City of New York, in any coin or currency of
the United States of America which at the time of payment is legal tender for
payment of public and private debts; provided, however, that payment of interest
may be made at the option of the Corporation by check mailed to the registered
holder at such address as shall appear in the ______ register.
This ______ shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by or on behalf of
the Trustee.
- --------------
*** Substitute foreign currency if denominated in other than U.S. dollars.
-3-
<PAGE> 5
The provisions of this ______ are continued on the reverse side hereof and such
continued provisions shall for all purposes have the same effect as though fully
set forth at this place.
IN WITNESS WHEREOF, the Corporation has caused this Instrument to be
executed.
GTE CORPORATION
By_______________________________
Chairman
Attest:
______________________________
Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
Dated _______________________
This is one of the _________ of the series of Securities described in the
within-mentioned Indenture.
The Bank of New York
as Trustee
By___________________________
Authorized Signatory
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<PAGE> 6
(FORM OF REVERSE OF ______)
This ______ is one of a duly authorized series of Securities of the
Corporation (herein sometimes referred to as the "Securities"), all issued or to
be issued in one or more series under and pursuant to an Indenture dated as of
December 1, 1996, duly executed and delivered between the Corporation and The
Bank of New York, a banking corporation duly organized and existing under the
laws of the State of New York, Trustee (herein referred to as the "Trustee"), as
supplemented, including by a Supplemental Indenture dated as of _____________,
199_ (said Indenture as so supplemented being hereinafter referred to as the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitation of rights,
obligations, duties and immunities thereunder of the Trustee, the Corporation
and the holders of the Securities. By the terms of the Indenture, the Securities
are issuable in series which may vary as to amount, date of maturity, rate of
interest and in other respects as in the Indenture provided. This series of
______ is limited in aggregate principal amount to $___,000,000 (or the
equivalent thereof in the case of foreign currencies or currency equivalents).
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the ______ 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 contains provisions permitting the Corporation and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Securities of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the holders of the Securities; provided,
however, that no such supplemental indenture shall (i) extend the fixed maturity
of any Securities of any series, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce any
premium payable upon the redemption thereof, without the consent of the holder
of each Security so affected, or (ii) reduce the aforesaid percentage of
Securities the holders of which are required to consent to any such supplemental
indenture, without the consent of the holders of each Security then outstanding
and affected thereby. The Indenture also contains provisions permitting the
holders of a majority in aggregate principal amount of the Securities of any
series at the time outstanding, on behalf of the holders of Securities of such
series, to waive any past default in the performance of any of the covenants
contained in the Indenture, or established pursuant to the Indenture with
respect to such series, and its consequences, except a default in the payment of
the principal of, or premium, if any, or interest on any of the Securities of
such series. Any such consent or waiver by the registered holder of this ______
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such holder and upon all future holders and owners of this ______ and of
any ______ issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this ____________.
-5-
<PAGE> 7
No reference herein to the Indenture and no provision of this ______ or
of the Indenture shall alter or impair the obligation of the Corporation, which
is absolute and unconditional, to pay the principal of and premium, if any, and
interest on this ______ at the time and place and at the rate and in the money
herein prescribed.
The ______ are issuable as registered ______ without coupons. (The
______ shall be in denominations of $l,000 or any multiple of $l,000.)* (The
______ are issuable in the form of a Global Security denominated in an amount
equal to the aggregate principal amount of the ______ . Subject to Section 2.11
of the Indenture,)** ______ may be exchanged, upon presentation thereof for the
purpose, at the office or agency of the Corporation in the Borough of Manhattan,
The City of New York, for other ______ of authorized denominations, and for a
like aggregate principal amount and series, and upon payment of a sum sufficient
to cover any tax or other governmental charges in relation thereto. (If at any
time the Depository for the ______ notifies the Corporation that it is unwilling
or unable to continue as Depository for the ______ or if at any time the
Depository for the ______ shall no longer be registered or in good standing
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation and a successor Depository for the is not appointed by the
Corporation within 90 days after the Corporation receives such notice or becomes
aware of such condition, as the case may be, Section 2.11 of the Indenture shall
no longer be applicable to the and the Corporation will execute, and the Trustee
will authenticate and deliver, ______ in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal
to the principle amount of the Global Security representing such ______, in
exchange for such Global Security. In addition, the Corporation may at any time
determine that the ______ shall no longer be represented by a Global Security
and that the provisions of Section 2.ll of the Indenture shall no longer apply
to the ______. In such event the Corporation will execute, and the Trustee, upon
receipt of an Officers' Certificate evidencing such determination by the
Corporation, will authenticate and deliver, ______ in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security representing such
______, in exchange for such Global Security. Upon the exchange of the Global
Security for the ______ in definitive registered form without coupons, in
authorized denominations, the Global Security shall be cancelled by the Trustee.
Such ______ in definitive registered form issued in exchange for the Global
Security pursuant to Section 2.11(c) of the Indenture shall be registered in
such names and in such authorized denominations as the Depository, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such to the persons in whose
names such ______ are so registered, or to the Depository for delivery to such
persons.)**
- --------------
* Insert the language that is in parentheses only if a Global Security is not
used and the issue is denominated in U.S. dollars.
** Insert the language that is in parentheses if a Global Security is used.
-6-
<PAGE> 8
On and after ______, ______ the ______ may be redeemed, on not less
than 30 nor more than 60 days' prior notice given as provided in the Indenture,
as a whole or from time to time in part, at the option of the Corporation as
follows:
As provided in the Indenture and subject to certain limitations therein
set forth, this ______ is transferable by the registered holder hereof on the
______ register of the Corporation, upon surrender of this ______ for
registration of transfer at the office or agency of the Corporation to be
maintained by the Corporation in the Borough of Manhattan, The City of New York,
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Corporation or the Trustee duly executed by the registered
holder hereof or his attorney duly authorized in writing, and thereupon one or
more new ______ of authorized denominations and for the same aggregate principal
amount and series will be issued to the designated transferee or transferees. No
service charge will be made for any such transfer, but the Corporation may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in relation thereto.
Prior to due presentment for registration of transfer of this ______,
the Corporation, the Trustee, any paying agent and any ______ registrar may deem
and treat the registered holder hereof as the absolute owner hereof (whether or
not this ______ shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the ______ registrar) for the purpose
of receiving payment of or on account of the principal hereof (and premium, if
any) and interest due hereon and for all other purposes, and neither the
Corporation nor the Trustee nor any paying agent nor any ______ registrar shall
be affected by any notice to the contrary. (Notwithstanding the foregoing,
except as otherwise provided in Section 2.11 of the Indenture, this ______ may
be transferred, in whole but not in part, only to another nominee of the
Depository or to a successor Depository or to a nominee of such successor
Depository.)**
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on this ______, or for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the Indenture,
against any incorporator, stockholder, officer or director, past, present or
future, as such, of the Corporation or of any predecessor or 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
issuance hereof, expressly waived and released.
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** Insert the language that is in parentheses if a Global Security is used.
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<PAGE> 9
ARTICLE TWO.
Sinking Fund.
(if applicable)
SECTION 2.01. On or before ______ in the year ______ and on or before
in each year thereafter to and including the year ______ (each such ______ being
hereinafter referred to as a "Sinking Fund Payment Date"), while any of the
______ are outstanding, the Corporation shall deposit with the Trustee, as and
for a sinking fund, a payment of $ ______ .***
Such payments shall be made in cash or, in lieu of making payment of
all or any part thereof in cash, the Corporation at its option may deliver to
the Trustee ______ then outstanding hereunder, and the amount of cash which
would otherwise be required under this Section shall be reduced by the principal
amount of the ______ so delivered.
The Corporation shall, at least one full business day before each
Sinking Fund Payment Date, also pay to the Trustee the accrued interest due on
to be redeemed on such Sinking Fund Payment Date pursuant to Section 2.02
hereof.
On or before each Sinking Fund Payment Date, the Corporation may
deposit with the Trustee as and for an optional sinking fund, an additional
payment of up to $______ .***
The Corporation's obligations under this Section are subject to the
provisions of Sections 2.02 and 2.03 hereof as to credits which may be taken by
the Corporation thereunder.
SECTION 2.02. Not less than forty-five (45) days prior to a Sinking
Fund Payment Date (unless a later date shall be acceptable to the Trustee), the
Chairman, the President or any Vice President of the Corporation shall (i)
notify the Trustee as to the amount of the Sinking Fund Payment due for that
year which it will satisfy by delivery of ______, (ii) deliver such to the
Trustee, (iii) notify the Trustee as to the amount of credit which it will take
under Section 2.03 hereof with respect to the Sinking Fund Payment due for that
year and (iv) notify the Trustee of any ______ which are to be called in
anticipation of future Sinking Fund Payments. Any Sinking Fund Payments
(including the interest accrued and premium, if any, on ______ to be redeemed)
received by the Trustee in cash shall be applied by the Trustee to the
redemption of ______ on the Sinking Fund Payment Date at the Sinking Fund
Redemption Price specified in the form of ______ set forth herein, in the manner
provided in Article Three of the Indenture, subject to the following provisions
of this Section.
If all or any part of any such Sinking Fund Payment is to be made in
cash as aforesaid, the Trustee shall, at least 35 days before the Sinking Fund
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*** Substitute foreign currency if denominated in other than U.S. dollars.
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<PAGE> 10
Payment Date, select as provided in Section 3.02 of the Indenture, ______ and
portions of ______ to be called for redemption on such date sufficient to
exhaust as nearly as may be the sinking fund moneys held by or payable to the
Trustee under Section 2.01 hereof by such date; but the Trustee shall not cause
any fraction of a $1,000 *** to be so called nor shall the Trustee be obliged to
make such selection or cause any ______ to be so called whenever it expects to
have available for that purpose less than $25,000 *** in which case the Trustee
shall retain the resulting balances and apply them with the next succeeding
Sinking Fund Payment. The Trustee, at least 35 days before the applicable
Sinking Fund Redemption Date, shall give notice to the Corporation accordingly,
specifying the ______ and portions of ______ to be redeemed, and the Corporation
covenants forthwith to give notice as provided in Section 3.02 of the Indenture,
and to take any other action required so to redeem such ______ on the applicable
Sinking Fund Payment Date; or the Trustee shall, at the request and at the
expense and on behalf of the Corporation, give such notice and take such action.
All ______ redeemed by the application of money held in the sinking
fund or delivered by the Corporation to the Trustee on account of any Sinking
Fund Payment in lieu of cash shall, unless already cancelled, be forthwith
cancelled by the Trustee.
Money in the sinking fund shall be held by the Trustee subject to the
provisions of Section 7.05 of the Indenture as security for all the ______
unless and until particular ______ are selected for redemption, after which to
the extent required for redemption such moneys shall be held in trust for the
______ so selected.
SECTION 2.03. The Corporation may, in anticipation of its future
sinking fund obligations, call ______ for redemption on ______ in the year
______ and on ______ in any year thereafter at the Sinking Fund Redemption Price
specified in the form of ______ set forth herein, in the manner provided in
Article Three of the Indenture, or, in lieu thereof, deliver to the Trustee
before ______(unless a later date shall be acceptable to the Trustee) in any
such year, ______ then outstanding hereunder (together with proper instruments
of transfer satisfactory to the Trustee); provided, however, that the aggregate
principal amount of ______ redeemed for cash in any one year through sinking
fund payments under section 2.01 hereof shall not exceed $______ ***. There
shall be no limit to the amount of future sinking fund obligations under Section
2.01 hereof that may be satisfied with The Corporation shall thereby obtain a
credit of 100% of the principal amount of the ______ so redeemed or delivered,
which it may apply from time to time in any one or more years against its future
sinking fund obligations hereunder.
SECTION 2.04. Nothing in this Article Two shall be deemed to limit the
right of the Corporation (i) to call ______ for redemption at the applicable
Regular Redemption Price as provided in Section 1.01 hereof or (ii) to purchase
or acquire ______ otherwise and to use ______ so redeemed or so purchased or
acquired in lieu of cash in making or anticipating sinking fund payments under
Sections 2.01 and 2.03 hereof.
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*** Substitute foreign currency if denominated in other than U.S. dollars.
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<PAGE> 11
ARTICLE THREE.
Original Issue of ______.
SECTION 3.01. ______ in the aggregate principal amount of ______
$______,000,000 may, upon the execution of this ______ Supplemental Indenture
***, or from time to time thereafter, be executed by the Corporation and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said ______ to or upon the written order of the
Corporation, signed by its Chairman, its President, or any Vice President and
its Treasurer or an Assistant Treasurer, without any further action by the
Corporation.
ARTICLE FOUR.
Sundry Provisions.
SECTION 4.01. Except as otherwise expressly provided in this __________
Supplemental Indenture or in the form of ______ or otherwise clearly required by
the context hereof or thereof, all terms used herein or in said form of ______
that are defined in the Indenture shall have the several meanings respectively
assigned to them thereby.
SECTION 4.02. The Indenture, as supplemented by this ______
Supplemental Indenture, is in all respects ratified and confirmed, and this
______ Supplemental Indenture shall be deemed part of the Indenture in the
manner and to the extent herein and therein provided.
SECTION 4.03. The recitals herein contained are made by the Corporation
and not by the Trustee, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representation as to the validity or
sufficiency of this ______ Supplemental Indenture.
SECTION 4.04. This ______ Supplemental Indenture may be simultaneously
executed in several counterparts and all said counterparts, executed and
delivered each as an original, shall constitute but one and the same instrument.
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*** Substitute foreign currency if denominated in other than U.S. dollars.
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<PAGE> 12
IN WITNESS WHEREOF, the parties hereto have caused this ______
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
GTE CORPORATION
By_____________________________
Vice President
Attest:
___________________________
Secretary
THE BANK OF NEW YORK,
as Trustee
By_____________________________
Vice President
Attest:
___________________________
Title:
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<PAGE> 13
STATE OF CONNECTICUT )
COUNTY OF FAIRFIELD ) ss.:
On the ______ day of ______, in the year one thousand nine hundred
ninety-____, before me personally came ______ to me known, who, being by me duly
sworn, did depose and say that he resides at ______; that he is Vice President
of GTE CORPORATION, one of the corporations described in and which executed the
above instrument; that he knows the corporate seal of said corporation; that the
seal affixed to the said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
__________________________________
NOTARY PUBLIC
My Commission Expires
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
On the ______ day of ______, in the year one thousand nine hundred
ninety-____, before me personally came ______ to me known, who, being by me duly
sworn, did depose and say that he resides at _______________; that he is ______
of THE BANK OF NEW YORK, one of the corporations described in and which executed
the above instrument; that he knows the corporate seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation and that he
signed his name thereto by like authority.
___________________________________
NOTARY PUBLIC
My Commission Expires
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