As filed with the Securities and Exchange Commission on May 20, 1999
Registration Statement No.
Post-Effective Amendment No. 1 to Registration Statement No. 33-49851
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BELL ATLANTIC -- NEW JERSEY, INC.
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(Exact Name of Registrant as Specified in Its Charter)
New Jersey 22-1151770
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
540 Broad Street Neil D. Olson
Newark, New Jersey 07101 Treasurer
(973) 649-9900 Bell Atlantic--New Jersey, Inc.
(Address, Including Zip Code, 1095 Avenue of the Americas
and Telephone Number, New York, New York 10036
Including Area Code, (212) 395-1344
of Registrant's Principal (Name, Address, Including Zip Code,
Executive Offices) and Telephone Number, Including
Area Code, of Agent for Service)
Copies to:
P. Alan Bulliner, Esq. Raymond W. Wagner, Esq.
Associate General Counsel and Corporate Secretary Simpson Thacher & Bartlett
Bell Atlantic Corporation 425 Lexington Avenue
1095 Avenue of the Americas New York, New York 10017
New York, New York 10036
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement, as determined
by market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_| ______________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_| _______________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed
Maximum Proposed Maximum
Title of Each Class of Amount To Be Offering Price Aggregate Offering Amount of
Securities To Be Registered Registered(1)(3) per Unit (2) Price (2) Registration Fee(3)
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<S> <C> <C> <C> <C>
Debt Securities...................... $300,000,000 100% $300,000,000 $83,400
==================================================================================================================================
</TABLE>
(1) Or, if the securities registered hereby are issued (i) with an initial
offering price denominated in a foreign currency or currency unit, such
amount as shall result in aggregate gross proceeds not in excess of
$300,000,000 to the Registrant at the time of initial offering, or (ii) at
an original issue discount, such greater amount as shall result in
aggregate gross proceeds not in excess of $300,000,000 to the Registrant.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(o) under the Securities Act of 1933, as amended.
(3) An aggregate amount of $50,000,000 of Debt Securities previously
registered pursuant to Registration Statement No. 33-49851 is being
included in the Prospectus filed with this Registration Statement. The
Registrant previously paid a filing fee with respect to such Debt
Securities in the amount of $15,625.
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
Prospectus included in this Registration Statement is a combined Prospectus
which also covers an aggregate remaining amount of $50,000,000 of Debt
Securities previously registered under Registration Statement on Form S-3 (No.
33-49851). This Registration Statement is a new Registration Statement and also
constitutes Post-Effective Amendment No. 1 to Registration Statement No.
33-49851, and such Post-Effective Amendment shall hereafter become effective
concurrently with the effectiveness of this Registration Statement in accordance
with Section 8(c) of the Securities Act of 1933, as amended.
---------------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
Information contained herein is subject to completion or amendment.
Registration statements relating to these securities have been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statements become
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any state in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such state.
Subject to completion, dated May 20, 1999
PROSPECTUS
BELL ATLANTIC -- NEW JERSEY, INC.
540 Broad Street
Newark, New Jersey 07101
(973) 649-9900
$350,000,000
Debt Securities
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We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any supplement carefully
before you invest.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
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This prospectus is dated , 1999.
<PAGE>
TABLE OF CONTENTS
About this prospectus.......................................................2
Where you can find more information about
Bell Atlantic -- New Jersey..............................................2
The company.................................................................3
Ratios of earnings to fixed charges.........................................3
Use of proceeds.............................................................3
Description of debt securities..............................................3
Limitations on issuance of
bearer debt securities...................................................9
Certain U.S. federal income tax
consequences to non-U.S. persons.........................................9
Plan of distribution.......................................................10
Experts....................................................................11
Legal opinions.............................................................11
ABOUT THIS PROSPECTUS
This prospectus is part of registration statements that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may
sell the unsecured debt securities described in this prospectus in one or more
offerings up to a total dollar amount of $350,000,000. This prospectus provides
you with a general description of the debt securities we may offer. Each time we
sell debt securities, we will provide a prospectus supplement that will contain
specific information about the terms of that offering. The prospectus supplement
may also add, update or change information contained in this prospectus. You
should read both this prospectus and any prospectus supplement together with
additional information described below under "Where you can find more
information about Bell Atlantic -- New Jersey".
WHERE YOU CAN FIND MORE INFORMATION
ABOUT
BELL ATLANTIC -- NEW JERSEY
We file annual, quarterly and current reports and other information with
the SEC. You may also read and copy any document we file at the SEC's public
reference rooms in Washington, D.C., New York, New York and Chicago, Illinois.
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms. Our SEC filings are available to the public over the Internet
at the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be a part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference
o our annual report on Form 10-K for the year ended December 31, 1998,
o our quarterly report on Form 10-Q for the three months ended March
31, 1999, and
o any future filings made with the SEC under Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, until we sell all
the debt securities.
You may request a copy of these filings at no cost, by writing or
telephoning:
Director -- Reporting and Consolidation
Bell Atlantic Corporation
47th Floor
1717 Arch Street
Philadelphia, PA 19103
Telephone: (215) 963-6360
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
<PAGE>
THE COMPANY
We were incorporated in 1904 in the State of New Jersey.
We are engaged in the business of providing telecommunications services in
New Jersey. Since January 1, 1984, we have been a wholly owned subsidiary of
Bell Atlantic Corporation ("Bell Atlantic Parent"), one of the regional holding
companies formed by AT&T Corp. in connection with the court-ordered divestiture
by AT&T of certain portions of its 22 wholly owned operating telephone
companies.
On August 14, 1997, Bell Atlantic Parent merged with NYNEX Corporation,
another regional holding company formed by AT&T. As a result of the merger,
NYNEX became a subsidiary of Bell Atlantic Parent, and NYNEX shareholders
received 0.768 of a share of Bell Atlantic Parent's common stock for each share
of NYNEX common stock.
On July 28, 1998, Bell Atlantic Parent and GTE Corporation announced a
planned merger of equals. As a result of this announcement, the long-term debt
ratings of certain telephone subsidiaries of Bell Atlantic Parent, including
ourselves, have been placed on "review for possible downgrade" by Moody's
Investors Service Inc. and on "Credit Watch with negative implications" by
Standard & Poor's Ratings Group. Duff & Phelps Credit Rating Co. has reaffirmed
its long-term debt ratings of certain telephone subsidiaries of Bell Atlantic
Parent, including ourselves.
RATIOS OF EARNINGS
TO FIXED CHARGES
The following table shows our historical ratios of earnings to fixed
charges of Bell Atlantic -- New Jersey for the periods indicated. The ratios of
earnings to fixed charges for the years ended December 31, 1994-98 have been
derived from audited financial statements and the ratio for the three months
ended March 31, 1999 has been derived from unaudited financial statements.
Three Months Ended Years Ended December 31,
------------------ --------------------------------
March 31, 1999 1998 1997 1996 1995 1994
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9.09 7.73 7.58 7.21 7.15 6.71
For the purpose of this ratio:
o earnings have been calculated by adding interest expense, the
estimated interest portion of rentals and amortization of
capitalized interest to income before the provision for income
taxes, extraordinary items and cumulative effect of change in
accounting principles; and
o fixed charges are comprised of interest expense, the estimated
interest portion of rentals and capitalized interest.
USE OF PROCEEDS
We will use the net proceeds that we receive from the sale of the debt
securities offered by this prospectus and the accompanying prospectus supplement
to repay short-term and/or long-term debt, to refinance outstanding long-term
debt and/or for general corporate purposes. If we determine that it is in our
best interest to refinance long-term debt, we would redeem or repurchase, in
whole or in part, one or more debt issues identified in the particular
prospectus supplement.
DESCRIPTION OF DEBT SECURITIES
The debt securities will be issued under an Indenture, dated as of
December 22, 1993, between Bell Atlantic -- New Jersey and First Union National
Bank, as successor trustee. The Indenture provides for the issuance from time to
time of debt securities in an unlimited dollar amount and an unlimited number of
series.
The following description of the terms of the debt securities summarizes
the material terms that will apply to the debt securities. The description is
not complete, and we refer you to the Indenture, a copy of which is an exhibit
to the registration statements of which this prospectus is a part. For your
reference, in several cases below we have noted the section in the Indenture
that the paragraph summarizes. Capitalized terms have the meanings assigned to
them in the Indenture. The
<PAGE>
referenced sections of the Indenture and the definitions of capitalized terms
are incorporated by reference in the following summary.
Under existing law, we are required to obtain state regulatory approval to
issue long-term debt securities.
Specific terms of each series
Each time that we issue a new series of debt securities, the prospectus
supplement relating to that new series will specify the particular amount, price
and other terms of those debt securities. These terms may include:
o the title of the debt securities;
o any limit on the total principal amount of the debt securities;
o the date or dates on which the principal of the debt securities will
be payable;
o the interest rate or rates of the debt securities or their method of
determination; the date or dates from which interest will accrue;
the interest payment dates for the debt securities; and the regular
record dates;
o the place or places where the principal of and premium and interest
on the debt securities will be paid;
o the period or periods within which, the price or prices at which and
the terms on which any of the debt securities may be redeemed, in
whole or in part at our option;
o the terms on which Bell Atlantic-- New Jersey would be required to
redeem or purchase debt securities (1) pursuant to any sinking fund
or similar provisions, (2) on the occurrence of certain events or
(3) at the option of a holder of debt securities; and the period or
periods within which, the price or prices at which and the terms and
conditions on which the debt securities will be so redeemed or
purchased in whole or in part;
o the denominations in which debt securities will be issued, if other
than denominations of $1,000 and any whole multiple thereof;
o the portion of the principal amount of the debt securities that is
payable on the declaration of acceleration of the maturity, if other
than their principal amount; these debt securities are referred to
as "OID debt securities" and are described below;
o whether the debt securities will be registered debt securities or
bearer debt securities, with or without interest coupons, or both;
any restrictions on the offering, sale or delivery of bearer debt
securities; and the terms on which bearer debt securities may be
exchanged for registered debt securities and vice versa;
o whether and under what circumstances we will pay additional amounts
on any debt securities to any holder of debt securities who is not a
U.S. person for taxes or similar charges that are withheld or
deducted; and whether we will have the option to redeem these debt
securities rather than pay additional amounts;
o the currency or currencies, including composite currencies, in which
payment of the principal of and premium and interest on any debt
securities will be made, if other than U.S. dollars;
o any other terms of the debt securities that are not inconsistent
with the Indenture;
o the form of debt securities, including legends that may be required
by United States laws or regulations, the form of coupons or
temporary global securities and the form of any certificates that
may be required under the Indenture or under United States laws or
regulations for the offering, sale, delivery or exchange of bearer
debt securities; and
<PAGE>
o the extent to which any debt securities will be issued in temporary
or permanent global form and the manner of making payments.
(section 2.02)
We may issue debt securities as OID debt securities. OID debt securities
bear no interest or bear interest at below-market rates and are sold at a
discount below their stated principal amount. The prospectus supplement will
contain any special tax, accounting or other information relating to OID debt
securities or to certain other kinds of debt securities that may be offered,
including debt securities linked to an index or payable in a currency or
currencies other than U.S. dollars.
Ranking
The debt securities will be unsecured and unsubordinated debt and will
rank equally with all our other unsecured and unsubordinated debt.
Form and denomination
We may issue debt securities of a series in fully registered form without
coupons, in bearer form either with or without coupons or any combination of
those forms. (section 2.02) The prospectus supplement will state whether the
bearer debt securities may be exchanged for registered debt securities. The
prospectus supplement will also state whether the debt securities will initially
be issued in temporary form or in definitive form. (section 2.12)
We will issue debt securities in denominations of $1,000 or multiples
thereof, unless the prospectus supplement states otherwise. Bearer debt
securities will not be delivered to U.S. persons.
Material covenants
The Indenture includes the following material covenants.
Lien on assets
If we mortgage, pledge or otherwise subject to any lien the whole or any
part of any property or assets which we now own or acquire in the future, then
we will secure the debt securities to the same extent and in the same proportion
as the debt or other obligation that is secured by that mortgage, pledge or
other lien. The debt securities will remain secured for the same period as the
other debt remains secured. This restriction does not apply, however, to any of
the following:
o purchase-money mortgages or liens;
o liens on any property or asset that existed at the time when we
acquired that property or asset;
o any deposit or pledge to secure public or statutory obligations;
o any deposit or pledge with any governmental agency required to
qualify us to conduct our business, or any part of our business, or
to entitle us to maintain self-insurance or to obtain the benefits
of any law relating to workmen's compensation, unemployment
insurance, old age pensions or other social security;
o any deposit or pledge with any court, board, commission or
governmental agency as security related to the proper conduct of any
proceeding before it; or
o any mortgage, pledge or lien on any property or asset of any of our
affiliates, even if the affiliate may have acquired that property or
asset from us.
(section 4.02)
Limitation on merger, consolidation and sales of assets
We may not consolidate with or merge into any other entity or transfer or
lease our properties and assets substantially as an entirety to any person
unless:
o the successor assumes by supplemental indenture all our obligations
under the debt securities and the Indenture; and
o after giving effect to the transaction, there is no default under
the Indenture.
The surviving transferee or lessee corporation will be our successor, and,
except in the case of a lease, we will be relieved of all obligations under the
debt securities and the Indenture. (section 5.01)
<PAGE>
Possible waiver of certain covenants
We will not be required to comply with the restrictive covenants described
above under "Lien on assets" and "Limitation on merger, consolidation and some
sales of assets", if the holders of at least a majority in principal amount of
each series of outstanding debt securities affected by that covenant, acting as
separate classes, waive compliance with it. (section 9.02)
Payment and paying agents
Payments on registered debt securities
We will pay principal of and premium and interest on registered debt
securities in the designated currency or currency unit at the office of one or
more paying agents as we designate from time to time. At our option, we may pay
interest on registered debt securities by check mailed to the address of the
person that appears in the security register. We will pay installments of
interest on any registered debt security to the person in whose name the
registered debt security is registered at the close of business on the regular
record date for these payments. We will pay principal and premium on registered
debt securities only against surrender of these debt securities. (sections 2.04
and 2.05)
Payments on bearer debt securities
We will pay principal of and premium and interest on bearer debt
securities in the designated currency or currency unit at the offices of those
paying agents outside the United States as we may designate from time to time.
We will pay principal, original issue discount, if any, and premium on bearer
debt securities only against surrender of these debt securities, and we will pay
interest on bearer debt securities with coupons only against surrender of the
coupon relating to the particular interest payment date. (section 2.05)
We will not make a payment on any bearer debt security at our office or
agency in the United States or by check mailed to any address in the United
States or by transfer to any account maintained with a bank located in the
United States. However, we will maintain at least one paying agent located
outside the United States for bearer debt securities until two years after the
principal of the bearer debt securities becomes due and payable. Thereafter, we
will maintain a paying agent outside the United States, if necessary to comply
with United States tax law or regulations. (section 2.04) Notwithstanding the
above, if payment at all offices or agencies outside the United States of the
full amount in U.S. dollars of bearer debt securities denominated and payable in
U.S. dollars is illegal or effectively precluded by exchange controls or other
similar restrictions, then we may make payments on those bearer debt securities
if, but only if, payment in the United States would not cause those bearer debt
securities to be treated as a "registration-required obligation" under United
States law and regulations. (section 2.05)
Payments of unclaimed moneys
Moneys that we have deposited with the trustee or a paying agent for the
payment of principal of or premium and interest on any debt security or coupon
and that remain unclaimed will be paid by the trustee to an appropriate state
authority pursuant to the applicable abandoned property law. In that event, the
holder of that debt security or coupon will be able to look only to that state
authority for payment of these moneys. (section 8.03)
Paying agent
First Union National Bank will be designated as our paying agent, unless
the prospectus supplement states otherwise. The office of First Union National
Bank in the Borough of Manhattan in New York City will be our office or agency
where (1) debt securities that are issuable solely as registered debt securities
and (2) debt securities, subject to the limitations described above in the case
of bearer debt securities, that are issuable solely as bearer debt securities or
as both registered debt securities and bearer debt securities may be presented
or surrendered for payment. We will name any paying agents outside the United
States and any other paying agents in the United States in the prospectus
supplement. (section 2.04)
At any time, we may appoint additional paying
agents or terminate the appointment of any paying
agent, subject to the limitations described in the
Indenture. (section 2.04)
Exchange, registration and transfer
Exchange
Holders of debt securities may present their
<PAGE>
securities for exchange under the following conditions.
o Holders of registered debt securities of any series may exchange
their securities for an equal principal amount of other registered
debt securities of different authorized denominations of the same
series and with the same date of maturity.
o Holders of bearer debt securities of a series that are issuable as
both registered debt securities and bearer debt securities may
exchange the bearer debt securities of that series, with all
unmatured coupons and all matured coupons in default, for an equal
principal amount of registered debt securities or bearer debt
securities of the same series of any authorized denominations and
with the same date of maturity.
Holders of bearer debt securities may not exchange them for registered
debt securities, unless the applicable prospectus supplement describes that they
may do so and applicable rules and regulations permit that exchange.
Notwithstanding the above, we will not be required to exchange any debt
securities if, as a result of the exchange, we would suffer adverse consequences
under any United States law or regulation. (section 2.08)
Registration and transfer
Holders of registered debt securities, other than book-entry debt
securities which are discussed below, may present their securities for
registration of transfer with the form of transfer endorsed thereon duly
executed at the office of one or more security registrars designated by us.
(section 2.04) First Union National Bank will be the initial security registrar
under the Indenture. First Union National Bank will initially be designated as
our office or agency in the Borough of Manhattan, New York City where holders of
debt securities may present their debt securities for registration of transfer
or exchange. First Union National Bank currently has offices at 40 Broad Street,
5th Floor, Suite 550, New York, NY 10004.
At any time, we may appoint, or terminate the appointment of, one or more
security registrars or additional transfer agents.
If we redeem in part any series of debt securities, we will not be
required to issue, register the transfer of or exchange debt securities under
the following conditions.
o We will not be required to issue, register the transfer of or
exchange any debt securities during a period of 15 days before any
selection of those debt securities to be redeemed.
o We will not be required to register the transfer of or exchange any
debt securities selected for redemption, in whole or in part, except
the unredeemed portion of any debt securities being redeemed in
part.
o We will not be required to register the transfer of or exchange debt
securities of any holder who has exercised an option to require the
redemption of those debt securities prior to their stated maturity
date.
(section 2.08) For a description of restrictions on the exchange, registration
and transfer of global debt securities, see "Global securities".
Global securities
We may issue debt securities of a series in whole or in part as one or
more global debt securities in the following two kinds of forms:
o in either registered or bearer form; and
o in either temporary or definitive form.
We summarize each of these forms below as well as the depositary
arrangements that we anticipate will apply to them.
Depositary arrangements
The trustee will deposit the global debt securities of a series with, or
on behalf of, a depositary located in the United States (a "U.S. Depositary") or
a common depositary located outside the United States (a "Common Depositary")
for the benefit of the Euro-clear System or CEDEL BANK, S.A. for credit to the
respective accounts of the beneficial owners of interests in these debt
securities. All temporary or
<PAGE>
definitive global debt securities in bearer form will be deposited with a Common
Depositary.
The prospectus supplement will describe the specific terms of the
depositary arrangement for debt securities of a series that are issued in global
form. None of ourselves, the trustee, any paying agent or the security registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in a global
debt security or for maintaining, supervising or reviewing any records relating
to these beneficial ownership interests. We anticipate that the following
provisions will apply to all depositary arrangements with a U.S. Depositary or a
Common Depositary.
Temporary global securities
If the prospectus supplement so specifies, all or any portion of the debt
securities of a series that are issuable as bearer debt securities initially
will be represented by one or more temporary global debt securities, without
interest coupons. These bearer debt securities in temporary form will be
deposited with a Common Depositary in London for Morgan Guaranty Trust Company
of New York, Brussels Office, as operator of Euro-clear, and CEDEL for credit to
the respective accounts of the beneficial owners of these debt securities or to
other accounts as they may direct. On and after the date set for the exchange of
these temporary securities, each temporary global debt security will be
exchangeable for definitive debt securities in any of the following three forms:
o in bearer form;
o in registered form;
o in definitive global bearer form; or
o any combination of the above.
Bearer debt securities, including debt securities in definitive global
bearer form, which are to be delivered in exchange for a portion of temporary
global debt securities, will not be mailed or otherwise delivered to any
location in the United States in connection with that exchange.
Unless the prospectus supplement states otherwise, we will pay interest on
that portion of temporary global debt securities that is due before the issuance
of definitive debt securities to Euro-clear or CEDEL for that portion of the
temporary global debt securities held for its account. As a condition of making
that payment, we will require that Euro-clear or CEDEL deliver to the trustee a
certificate signed by Euro-clear or CEDEL dated no earlier than that interest
payment date. The certificate must be based on statements provided to it by its
account holders who are beneficial owners of interests in those temporary global
debt securities. The certificate must state either of the following:
o that portion (1) is not beneficially owned by a U.S. person and (2)
has not been acquired by or on behalf of a U.S. person or for offer
to resell or for resale to a U.S. person or any person inside the
United States; for the purposes of the certificate, a "U.S. person"
means a citizen or resident of the United States, a corporation or
partnership created or organized in or under the laws of the United
States or an estate or trust the income of which is subject to U.S.
federal income taxation regardless of its source; or
o if a beneficial interest in that portion has been acquired by a U.S.
person, (1) that that person is a financial institution, as defined
in the U.S. Treasury Regulations promulgated under the Internal
Revenue Code, purchasing for its own account or has acquired the
debt security through a financial institution and (2) that these
debt securities are held by a financial institution that has agreed
in writing to comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the Internal Revenue Code and the U.S. Treasury
Regulations and that it did not purchase for offer to resell or for
resale inside the United States.
Euro-clear or CEDEL will credit the interest it receives regarding these
temporary global debt securities to the accounts of their beneficial owners or
to other accounts as these beneficial owners may direct.
Definitive global securities
Bearer debt securities. If any debt securities
<PAGE>
of a series are issuable in definitive global bearer form, the prospectus
supplement will describe the circumstances under which beneficial owners of
interests in any of these definitive global bearer debt securities may exchange
these interests for debt securities of that series and of like term and
principal amount in any authorized form and denomination. Bearer debt securities
delivered in exchange for a portion of definitive global debt securities will
not be mailed or otherwise delivered to any location in the United States in
connection with that exchange. We will pay principal of and premium and interest
on definitive global bearer debt securities in the manner described in the
prospectus supplement.
Book-entry debt securities. If debt securities of a series are to be
represented by a definitive global registered debt security to be deposited with
or on behalf of a U.S. Depositary, then these debt securities, which we refer to
as "book-entry debt securities", will be represented by definitive global debt
securities registered in the name of the U.S. Depositary or its nominee.
Book-entry debt securities are subject to the following procedures and rules:
o Following the issuance of definitive global debt securities
registered in the name of the U.S. Depositary, the U.S. Depositary
will credit, on its book-entry registration and transfer system, the
principal amounts of the book-entry debt securities represented by
those global debt securities to the accounts of institutions that
have accounts with that depositary or its nominee ("participants").
The accounts to be credited will be designated by the underwriters
or agents for the sale of these book-entry debt securities or by us,
if we sell debt securities directly.
o Ownership of book-entry debt securities will be limited to
participants or persons that may hold interests through
participants. Ownership of book-entry debt securities will be shown
on, and the transfer of that ownership will be effected only
through, records maintained by the U.S. Depositary or its nominee
for the applicable definitive global debt securities or by
participants or persons that hold through participants. So long as
the U.S. Depositary, or its nominee, is the registered owner of
those global debt securities, that depositary or its nominee will be
considered the sole owner or holder of the book-entry debt
securities represented by those global debt securities for all
purposes under the Indenture.
o We will pay principal, premium and interest on book-entry debt
securities to the U.S. Depositary or its nominee as the registered
owner or the holder of the global debt securities representing those
book-entry debt securities.
o Owners of book-entry debt securities will not be entitled to have
those debt securities registered in their names in the security
register, will not receive or be entitled to receive physical
delivery of those debt securities in definitive form and will not be
considered the owners or holders thereof under the Indenture.
We expect that the U.S. Depositary for a series of book-entry debt
securities, following the receipt of any payment of principal of or premium or
interest on the related definitive global debt securities, will immediately
credit participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of those global debt
securities as shown on the records of the U.S. Depositary. We also expect that
standing instructions and customary practices will govern the payments by
participants to owners of beneficial interests in any global debt securities
held through these participants and that these payments will be the
responsibility of these participants. These procedures are currently in practice
with securities held for the accounts of customers in bearer form or registered
in "street name".
Some jurisdictions require that certain purchasers of securities take
physical delivery of these securities in definitive form. These limits and laws
impair the ability to purchase or transfer book-entry debt securities.
<PAGE>
Defeasance
If we deposit with the trustee money or U.S. government obligations that
will be sufficient to pay the principal of and interest on the debt securities
of any series when due, then all our obligations under the Indenture, except for
certain obligations to register the transfer or exchange of the debt securities
and related coupons, hold moneys for payment of these debt securities and
coupons in trust and provide indemnification to the trustee for administering
the Indenture, will terminate as to the debt securities of that series. (Section
8.01)
That deposit may be treated as a taxable exchange of the debt securities
of that series for obligations of the trust or a direct interest in the cash and
securities held in the trust. In that case, holders of the debt securities of
that series would recognize gain or loss as if they had exchanged their debt
securities for obligations of the trust or cash or securities held in the trust.
You should consult your own tax adviser as to the specific consequences of that
deposit.
Events of Default, notice and waiver
Events of Default
An "Event of Default" regarding any series of debt securities is any one
of the following events:
o default for 90 days in the payment of any interest installment when
due and payable;
o default in the payment of principal or premium when due at its
stated maturity, when called for redemption or otherwise;
o default in the performance of any covenant in the debt securities,
in the Indenture or any supplemental indenture for 90 days after
notice to us by the trustee or by holders of 25% in principal amount
of the outstanding debt securities of that series; and
o certain events of bankruptcy, insolvency and reorganization with
respect to us.
A default regarding a single series of debt securities will not
necessarily constitute a default regarding any other series.
If an Event for Default for any series of debt securities occurs and is
continuing, either the trustee or the holders of 25% in principal amount of the
outstanding debt securities of that series may declare the principal of all the
debt securities of that series, together with any accrued interest on the debt
securities, to be immediately due and payable by notice in writing to us. If the
holders of debt securities give notice of that declaration of acceleration to
us, then they must also give notice to the trustee.
The holders of a majority in principal amount of the outstanding debt
securities may rescind a declaration of acceleration if:
o the rescission would not conflict with any judgment or decree; and
o all Events of Default, besides the failure to pay principal or
interest due solely because of the declaration of acceleration, have
been cured or waived.
(section 6.02)
We are required to file every year with the trustee an officer's
certificate stating whether any default exists and specifying any default that
exists. (section 4.03)
Notices
The trustee is required to give notice to holders of a series of debt
securities of a default, which remains uncured or has not been waived, that is
known to the trustee within 90 days after the default has occurred. Except in
the event of a default in payment on debt securities, the trustee may withhold
this notice, if and only for so long as it determines in good faith that the
withholding of the notice is in the interests of the holders of that series of
debt securities. The trustee may not withhold the notice in the case of default
in the payment of principal of and premium or interest on any of the debt
securities. (section 7.05)
Some rights of the trustee
The holders of a majority in principal amount of outstanding debt
securities of any series may direct the time, method and place of conducting any
proceeding for any remedy available to the trustee or exercising any trust or
other power conferred on the trustee. The trustee may decline to follow that
direction, however, if it either would
<PAGE>
involve the trustee in personal liability or would be unduly prejudicial to
holders of the debt securities of that series that do not join in that
direction. (section 6.05) During a default, the trustee is required to exercise
the standard of care and skill that a prudent man would exercise or use under
the circumstances in the conduct of his own affairs. The trustee is not
obligated, however, to exercise any of its rights or powers under the Indenture
at the request or direction of any of the holders of debt securities unless
those holders have offered to the trustee reasonable security or indemnity.
(section 7.01)
Waiver
In certain cases, the holders of a majority in principal amount of the
outstanding series of debt securities may, on behalf of the holders of all debt
securities of that series, waive any past default or Event of Default regarding
that series or compliance with certain provisions of the Indenture. A default in
the payment of the principal of and premium or interest on any debt securities
of that series which has not been cured until that time, however, may not be
waived. (section 6.04)
Modification of the Indenture
Modification not requiring consent of holders
Without the consent of any holders of debt securities, we and the trustee
may modify the Indenture, among other things, to:
o cure any ambiguity or inconsistency in the Indenture or in the debt
securities;
o comply with the Indenture provisions regarding a merger or
consolidation involving us;
o provide for uncertificated debt securities in addition to or in
place of certificated debt securities;
o make any change that does not adversely affect the rights of any
holder of debt securities; or
o issue and establish the form and terms of any series of debt
securities as provided in the Indenture.
(section 9.01)
Modification requiring consent of holders
With the consent of the holders of at least a majority in principal amount
of the outstanding series of the debt securities that would be affected by a
modification of the Indenture, the Indenture permits us and the trustee to
modify the Indenture or the rights of the holders of the debt securities.
However, without the consent of each holder of all of the outstanding debt
securities affected by that modification, we may not:
o reduce the principal amount of the outstanding debt securities of
any series required to amend the Indenture or waive compliance with
the Indenture;
o change the rate of or change the time for payment of interest on any
debt security;
o change the principal of or change the fixed maturity of any debt
security;
o make any debt security payable in money other than that stated in
the debt security; or
o modify any of the provisions listed above, the provisions for waiver
of default and the provisions preserving the rights of holders to
receive payment of principal, premium and interest.
(section 9.02)
Governing law
The laws of the State of New Jersey govern the
Indenture and will govern the debt securities and the
coupons. (section 10.08)
Information concerning the trustee
We may from time to time maintain lines of credit and have other customary
banking relationships with First Union National Bank or with any of its
affiliates. First Union National Bank also serves as the trustee under
indentures relating to our Ten Year 7-1/4% Debentures, due June 1, 2002; Ten
Year 5-7/8% Debentures, due February 1, 2004; Forty Year 6-5/8% Debentures,
<PAGE>
due April 1, 2008; Forty Year 7-3/8% Debentures, due June 1, 2012; Thirty Year
8% Debentures, due June 1, 2022; Thirty Year 7-1/4% Debentures, due March 1,
2023; and Thirty-One Year 6.80% Debentures, due June 15, 2024.
LIMITATIONS ON ISSUANCE OF
BEARER DEBT SECURITIES
Bearer debt securities are subject to the following limitations:
o Bearer debt securities may not be offered or sold during the
"restricted period", as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7), within the United States or its possessions
or to U.S. persons other than to (a) an office located outside the
United States and its possessions of a U.S. financial institution,
as defined in Section 1.165-12(c)(1)(v) of the U.S. Treasury
Regulations, that purchases for its own account or for resale or for
the account of certain customers and provides a certificate stating
that it agrees to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code and the U.S.
Treasury Regulations or (b) certain other persons described in
Section 1.163-5(c)(2)(i)(D)(1)(iii)(B) of the U.S. Treasury
Regulations.
o Bearer debt securities may not be delivered in connection with their
sale during the restricted period within the United States or its
possessions.
o Any distributor, as defined in Section 1.163-5(c)(2)(i)(D)(4) of the
U.S. Treasury Regulations, participating in the offering or sale of
bearer debt securities must agree that (1) it will not offer or sell
during the restricted period any bearer debt securities within the
United States or its possessions or to United States persons other
than those described above, (2) it will not deliver in connection
with the sale of bearer debt securities during the restricted period
any bearer debt securities within the United States or its
possessions and (3) it has in effect procedures reasonably designed
to ensure that its employees and agents who are directly engaged in
selling bearer debt securities are aware of the restrictions on the
offers and sales described above.
o Bearer debt securities, other than a bearer debt security in
temporary global form, may not be delivered, nor may interest be
paid on any bearer debt securities until delivery to the trustee of
the certificate signed by either Euro-clear or CEDEL, which is
described above under "Global securities--Temporary global
securities".
o Bearer debt securities will bear a legend to the following effect:
"Any United States person who holds this obligation will be subject
to limitations under the United States income tax laws, including
the limitations provided in Section 165(j) and 1287(a) of the
Internal Revenue Code".
CERTAIN U.S. FEDERAL INCOME TAX
CONSEQUENCES TO NON-U.S. PERSONS
The following is a summary of certain U.S. federal income tax
considerations for beneficial owners of the debt securities that are "non-U.S.
persons" under the Internal Revenue Code. Under the Internal Revenue Code, a
"non-U.S. person" means a person that is not any of the following:
o a citizen or resident of the United States;
o a corporation or partnership created or organized in or under the
laws of the United States or any political subdivision thereof;
o an estate the income of which is subject to U.S. federal income
taxation regardless of its source; or
o a trust which is subject to the supervision of a court within the
United States and the control of one or more U.S. persons.
This summary is based on current law which is subject to change, perhaps
retroactively, is for
<PAGE>
general purposes only and should not be considered tax advice. This summary does
not represent a detailed description of the federal income tax consequences to
you in light of your particular circumstances. In addition, it does not
represent a detailed description of the U.S. federal income tax consequences
applicable to you if you are subject to special treatment under the U.S. federal
income tax laws, including if you are a "controlled foreign corporation",
"passive foreign investment company" or "foreign personal holding company". We
cannot assure you that a change in law will not alter significantly the tax
considerations that we describe in this summary.
You should consult your own tax adviser concerning the particular U.S.
federal income tax consequences to you of the ownership of the debt securities,
as well as the consequences to you arising under the laws of any other taxing
jurisdiction.
U.S. federal withholding tax
The 30% U.S. federal withholding tax will not apply to any payment of
principal or interest, including original issue discount, on a particular series
of debt securities provided that:
o you do not actually, or constructively, own 10% or more of the total
combined voting power of all classes of our voting stock within the
meaning of the Internal Revenue Code and the U.S. Treasury
Regulations;
o you are not a controlled foreign corporation that is related to us
through stock ownership;
o you are not a bank whose receipt of interest on the debt securities
is described in the Internal Revenue Code; and
o if the debt securities are issued as registered debt securities,
either (1) you provide your name and address on an IRS Form W-8, and
certify, under penalty of perjury, that you are not a U.S. person or
(2) a financial institution holding the debt securities on your
behalf certifies, under penalty of perjury, that it has received an
IRS Form W-8 from the beneficial owner and provides us with a copy.
If you cannot satisfy the requirements described above, payments of
premium, and interest, including original issue discount, made to you will be
subject to the 30% U.S. federal withholding tax, unless you provide us with a
properly executed (1) IRS Form 1001 or successor form claiming an exemption from
withholding under the benefit of a tax treaty or (2) IRS Form 4224 or successor
form stating that interest paid on the debt security is not subject to
withholding tax because it is effectively connected with your conduct of a trade
or business in the United States.
The 30% U.S. federal withholding tax will not apply to any gain or income
that you realize on the sale, exchange, retirement or other disposition of the
debt security.
U.S. federal estate tax
Your estate will not be subject to U.S. federal estate tax on debt
securities of a series beneficially owned by you at the time of your death,
provided that (1) you do not own 10% or more of the total combined voting power
of all classes of our voting stock within the meaning of the Internal Revenue
Code and the U.S. Treasury Regulations and (2) interest on that debt security
would not have been, if received at the time of your death, effectively
connected with the conduct by you of a trade or business in the United States.
U.S. federal income tax
If you are engaged in a trade or business in the United States and
interest on the debt securities is effectively connected with the conduct of
that trade or business, although exempt from the 30% withholding tax, you will
be subject to U.S. federal income tax on that interest on a net income basis in
the same manner as if you were a U.S. person as defined under the Internal
Revenue Code. In addition, if you are a foreign corporation, you may be subject
to a branch profits tax equal to 30% or lower applicable treaty rate, of your
earnings and profits for the taxable year, subject to adjustments that are
effectively connected with the conduct by you of a trade or business in the
United States. For this purpose, interest on debt securities will be included in
earnings and profits.
Any gain or income realized on the
<PAGE>
disposition of a debt security generally will not be subject to U.S. federal
income tax unless (1) that gain or income is effectively connected with the
conduct of a trade or business in the United States by you, or (2) you are an
individual who is present in the United States for 183 days or more in the
taxable year of that disposition, and certain other conditions are met.
Information reporting and backup withholding
In general, you will not be required to provide information reporting and
backup withholding regarding payments that we make to you provided that we do
not have actual knowledge that you are a U.S. person and, in the case of a
holder of a registered debt security, we have received from you the statement
described above under "U.S. federal withholding tax".
In addition, you will not be required to pay backup withholding and
provide information reporting regarding the proceeds of the sale of a debt
security within the United States or conducted through certain U.S.-related
financial intermediaries, if the payor receives the statement described above
and does not have actual knowledge that you are a U.S. person, as defined under
the Internal Revenue Code, or you otherwise establish an exemption.
U.S. Treasury Regulations were recently issued that generally modify the
information reporting and backup withholding rules applicable to certain
payments made after December 31, 1999. In general, the new U.S. Treasury
Regulations would not significantly alter the present rules discussed above,
except in certain special situations.
Any amounts withheld under the backup withholding rules will be allowed as
a refund or a credit against your U.S. federal income tax liability provided the
required information is furnished to the IRS.
PLAN OF DISTRIBUTION
We may sell the debt securities in any of three ways:
o through underwriters;
o through agents; or
o directly to a limited number of institutional purchasers or to a
single purchaser.
The prospectus supplement for each series of debt securities will describe
that offering, including:
o the name or names of any underwriters;
o the purchase price and the proceeds to us from that sale;
o any underwriting discounts and other items constituting
underwriters' compensation;
o any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers; and
o any securities exchanges on which the debt securities of that series
may be listed.
Underwriters
If underwriters are used in the sale, we will execute an underwriting
agreement with those underwriters. Unless otherwise set forth in the prospectus
supplement, the obligations of the underwriters to purchase debt securities will
be subject to certain conditions. The underwriters will be obligated to purchase
all the debt securities of a series if any are purchased.
The debt securities will be acquired by the underwriters for their own
account and may be resold by them from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. Underwriters may be deemed to
have received compensation from us in the form of underwriting discounts or
commissions and may also receive commissions from the purchasers of debt
securities for whom they may act as agent. Underwriters may also sell debt
securities to or through dealers. These dealers may receive compensation in the
form of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agent. Any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
We may authorize underwriters to solicit
<PAGE>
offers by certain types of institutions to purchase debt securities from us at
the public offering price stated in the prospectus supplement pursuant to
delayed delivery contracts providing for payment and delivery on a specified
date in the future. If we sell debt securities pursuant to these delayed
delivery contracts, the prospectus supplement will state that as well as the
conditions to which these delayed delivery contracts will be subject and the
commissions payable for that solicitation.
Agents
We may also sell debt securities through agents designated by us from time
to time. We will name any agents involved in the offer or sale of the debt
securities and will list commissions payable by us to these agents in the
prospectus supplement. These agents will be acting on a best efforts basis to
solicit purchases for the period of its appointment, unless we state otherwise
in the prospectus supplement.
Direct sales
We may sell debt securities directly to purchasers. In this case, we will
not engage underwriters or agents in the offer and sale of debt securities.
Remarketing transactions
We may also sell debt securities that we have purchased, redeemed or
repaid through one or more remarketing firms acting as principals for their own
accounts or as our agents. The applicable prospectus supplement will identify
any remarketing firms and describe the terms of our agreement with them and
their compensation. Remarketing firms may be deemed to be underwriters of the
debt securities under the Securities Act of 1933.
Indemnification
We may indemnify underwriters, dealers or agents who participate in the
distribution of debt securities against certain liabilities, including
liabilities under the Securities Act, and agree to contribute to payments which
these underwriters, dealers or agents may be required to make.
No assurance of liquidity
Each series of debt securities will be a new issue of securities with no
established trading market. Any underwriters that purchase debt securities from
us may make a market in these debt securities. The underwriters will not be
obligated, however, to make a market in the debt securities and may discontinue
market-making at any time without notice to holders of the debt securities. We
cannot assure you that there will be liquidity in the trading market for any
debt securities of any series.
EXPERTS
The financial statements and financial statement schedule incorporated in
this prospectus and in the registration statements by reference to the Annual
Report on Form 10-K of Bell Atlantic-New Jersey, Inc. for the year ended
December 31, 1998 have been so incorporated in reliance on the report (which
contains an explanatory paragraph stating that, in 1996, Bell Atlantic-New
Jersey, Inc. changed its method of accounting for directory publishing revenues
and expenses) of PricewaterhouseCoopers LLP, independent accountants, given on
the authority of such firm as experts in auditing and accounting.
LEGAL OPINIONS
Barry S. Abrams, Esq., our Vice President and General Counsel, has issued
an opinion regarding the legality of the debt securities. As of March 17, 1999,
Mr. Abrams owned beneficially 18,949 shares and 127,682 options to purchase
shares of the common stock of Bell Atlantic Parent and had approximately 1,695
shares credited to his account under the Bell Atlantic Savings Plan for Salaried
Employees. Simpson Thacher & Bartlett will rely on the opinion of Mr. Abrams as
to matters of New Jersey law. Simpson Thacher & Bartlett acts as counsel in
certain matters for Bell Atlantic Parent and certain of its subsidiaries.
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Securities and Exchange Commission Filing Fee...................... $ 83,400
Rating Agency Fees................................................. 90,000*
Fees and Expenses of Trustee, Registrar and Paying Agent........... 20,000*
Printing and Distributing Prospectus............................... 35,000*
Accountants' Fees and Expenses..................................... 30,000*
Legal and Blue Sky Fees and Expenses............................... 20,000*
Miscellaneous Expenses............................................. 11,600*
--------
Total............................................................ $290,000*
========
- ---------------
*Estimated
Item 15. Indemnification of Directors and Officers.
The registrant's By-Laws provide that a director or officer of the
registrant shall be indemnified by the registrant against reasonable costs,
expenses (exclusive of any amount paid to the registrant in settlement) and
counsel fees paid or incurred by him or her in connection with any action, suit
or proceeding to which he or she may be made a party by reason of the fact that
he or she was such director or officer, provided that (i) such action, suit or
proceeding shall be prosecuted against such director or officer to final
determination and it shall not be finally adjudged that he had been derelict in
the performance of his or her duties as such director or officer, or (ii) such
action is settled or otherwise terminated against such officer or director
without a final determination on the merits and the registrant's Board of
Directors determines that such director or officer had not been derelict in any
substantial way in the performance of his or her duties as such director or
officer.
The registrant's By-Laws by their terms do not limit or restrict the power
of the registrant, at its option, to take any other action with respect to the
indemnification or reimbursement of directors and officers that is consistent
with applicable New Jersey law. In this regard, the New Jersey Business
Corporation Act (the "BCA") provides, among other things, that, in certain
circumstances not involving proceedings by or in the right of the registrant, an
officer or director may be indemnified against not only reasonable costs,
disbursements and counsel fees but also amounts paid or incurred in satisfaction
of settlements, judgements, fines and penalties. The BCA further provides that
the indemnification provisions thereof are not exclusive of any other rights to
which an officer or director may be entitled under a charter, by-law, agreement,
vote of shareholders or otherwise, including the right to be indemnified against
both expenses and liabilities in proceedings by or in the right of the
registrant. The BCA expressly prohibits, however, any indemnification, whether
pursuant to its provisions or otherwise, in cases in which the director or
officer breached his or her duty of loyalty to the corporation or its
shareholders, did not act in good faith or knowingly violated the law, or
received an improper personal benefit. Special court approval of indemnification
may also be required in some cases.
As permitted by New Jersey law, the Certificate of Incorporation of the
registrant provides in pertinent part that, to the fullest extent permitted by
the BCA, no director or officer of the registrant shall be personally liable to
the registrant or its shareholders for damages for breach of any duty owed to
the Company or its shareholders as a director or officer. The BCA currently
permits such limitation of liability for directors and officers of the
registrant except with respect to any breach based upon an act or omission (i)
in breach of such person's duty of loyalty to the registrant or its
shareholders, (ii) not in good faith or in knowing violation of law or (iii)
resulting in receipt by such persons of an improper personal benefit. An act or
omission in breach of a person's duty of loyalty is defined under the BCA as any
act or omission which such person knows or believes to be contrary to the best
interests of the registrant or its shareholders in connection with a matter in
which such person has a material conflict of interest.
The directors and officers of the registrant are insured against certain
liabilities, including certain liabilities arising
<PAGE>
under the Securities act of 1933, which might be incurred by them in such
capacities and against which they cannot be indemnified by the registrant.
Any underwriters, dealers or agents referred to in the prospectus
contained in this registration statement will agree to indemnify the
registrant's directors and its officers who signed the registration statement
against certain liabilities which might arise under the Securities Act of 1933
from information furnished to the registrant by or on behalf of any such
indemnifying party.
Item 16. Exhibits.
<TABLE>
<S> <C>
1 Form of Underwriting Agreement.
4 Indenture, dated as of December 22, 1993, between the
registrant and First Union National Bank, as successor
trustee. The form or forms of debt security with respect to
each particular series of debt securities registered
hereunder will be filed as an exhibit to a Current Report on
Form 8-K and shall be deemed to be incorporated herein by
reference.
5 Opinion of Barry S. Abrams, Esq. as to the legality of the debt securities to be issued.
12 Computation of Ratios of Earnings to Fixed Charges.
23-a Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23-b Consent of Barry S. Abrams, Esq. (contained in his Opinion filed as Exhibit 5 hereto).
24 Powers of Attorney.
25 Statement of Eligibility of First Union National Bank, successor trustee, on Form T-1.
</TABLE>
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the debt securities, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement;
<PAGE>
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the debt securities offered herein, and
the offering of such debt securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the debt securities being registered which remain unsold at the termination
of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in this registration statement shall be deemed to be a new registration
statement relating to the debt securities offered herein, and the offering of
such debt securities at that time shall be deemed to be the initial bona fide
offering thereof.
(5) To use its best efforts to distribute prior to the opening of bids, to
prospective bidders, underwriters, and dealers, a reasonable number of copies of
a prospectus which at that time meets the requirements of Section 10(a) of the
Securities Act of 1933, and relating to the securities, if any offered at
competitive bidding, as contained in this registration statement, together with
any supplements thereto.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions referred to in Item 15 (other than the
insurance policies referred to therein), or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted against
the registrant by such director, officer or controlling person in connection
with the debt securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Newark, New Jersey on the 20th day of
May, 1999.
BELL ATLANTIC -- NEW JERSEY, INC.
By: /s/EDWIN F. HALL
------------------------------
Edwin F. Hall
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement or amendment thereto has been signed below by the
following persons in the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
* Director May 20, 1999
- ---------------------
Barry S. Abrams
* President and Chief Executive Officer May 20, 1999
- --------------------- (principal executive officer)
William M. Freeman and Director
* Chief Financial Officer (principal May 20, 1999
- --------------------- financial officer and principal
Edwin F. Hall accounting officer)
* Director May 20, 1999
- ---------------------
Joseph M. Milanowycz
*By: /s/ EDWIN F. HALL
-------------------------------
Edwin F. Hall
(as attorney-in-fact and on
his own behalf as
principal financial officer and
principal accounting officer)
BELL ATLANTIC -- NEW JERSEY, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
New York, New York
-------, ----
To the Representative
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Bell Atlantic -- New Jersey, Inc., a New Jersey corporation (the
"Company"), may issue and sell from time to time series of its debt securities
registered under the registration statement referred to in Paragraph 1(a) hereof
(collectively, the "Securities" and each individually, a "Security"). The
Company proposes to sell to the underwriters named in Schedule II (the
"Underwriters") to this Underwriting Agreement (this "Agreement"), for whom you
are acting as representative (the "Representative"), a series of Securities, of
the designation, with the terms and in the aggregate principal amount specified
in Schedule I hereto (collectively, the "Underwritten Securities" and each
individually, an "Underwritten Security"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I hereto,
then the terms "Underwriters" and "Representative" shall each be deemed to refer
to such firm or firms.
1. The Company represents, warrants and agrees that:
(a) Registration statements (Nos. 33-49851 and _____), including a
prospectus, with respect to the Securities have been prepared by the
Company in conformity with the requirements of the Securities Act of 1933,
as amended (the "Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder and have become effective. As used in this Agreement, (i)
"Registration Statement" means collectively registration statements Nos.
33-49851 and _________, each as amended and supplemented to the date
hereof; (ii) "Preliminary Prospectus" means each prospectus (including all
documents incorporated therein by reference) included in registration
statement No. [__], or amendments or supplements thereof, before it became
effective under the Act, including any prospectus filed with the
Commission pursuant to Rule 424(a) of the Rules and Regulations; and (iii)
"Prospectus" means each prospectus included in the Registration Statement,
including any preliminary or final prospectus amendment or supplement
(including in each case all documents incorporated therein by reference)
specifically relating to the Underwritten Securities, as filed with the
Commission pursuant to paragraph (b) of Rule 424 of the Rules and
Regulations. The Commission has not issued any order suspending the
effectiveness of the Registration Statement or preventing or suspending
the use of any Prospectus, and no proceedings for such purposes have been
instituted or are pending or, to the knowledge of
<PAGE>
2
the Company, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied with.
(b) The Registration Statement and each Prospectus contain, and (in
the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made)
will contain at all times during the period specified in Paragraph 7(c)
hereof, all statements which are required by the Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act" and, together with the
Act and the Exchange Act, the "Acts"), and the rules and regulations of
the Commission under such Acts; the indenture, including any amendments
and supplements thereto, pursuant to which the Underwritten Securities
will be issued (the "Indenture") will conform with the requirements of the
Trust Indenture Act and the rules and regulations of the Commission
thereunder; and the Registration Statement and each Prospectus do not, and
(in the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made)
will not, at any time during the period specified in Paragraph 7(c)
hereof, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading; provided that the Company makes no
representation or warranty as to information contained in or omitted from
the Registration Statement or any Prospectus in reliance and based upon
information furnished to the Company through the Representative by or on
behalf of any Underwriter or as to any statements in or omissions from the
Statement of Eligibility of the Trustee under the Indenture.
(c) The Company is not in violation of its corporate charter or
by-laws or in default under any agreement, indenture or instrument, except
for such defaults that would not result in a material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company, whether or not arising in
the ordinary course of business (each, a "Material Adverse Effect"); and
the execution, delivery and performance of this Agreement, the Indenture,
the Underwritten Securities, and any Delayed Delivery Contracts (as
defined in Paragraph 3 hereof) and the consummation of the transactions
contemplated herein, and in the Prospectus (including the issuance and
sale of the Underwritten Securities and the use of the proceeds from the
sale thereof as described in the Prospectus under the caption "Use of
Proceeds") have been duly authorized by all necessary corporate action and
do not and will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to, any
material agreement, indenture or instrument to which the Company is a
party or by which it is bound or to which any of its properties or assets
are subject, nor will such action result in a material violation of the
charter or by-laws of the Company or any statute, order, rule or
regulation of any court or governmental agency having jurisdiction over
the Company or its properties; and except as required by the Act, the
Trust Indenture
<PAGE>
3
Act, the Exchange Act and applicable state securities laws and except as
set forth in Paragraph 1(m) hereof, no consent, authorization or order of,
or filing or registration with, any court or governmental agency is
required for the execution, delivery and performance of this Agreement,
the Delayed Delivery Contracts and the Indenture or the consummation of
the transactions contemplated hereby and thereby.
(d) Except as described in or contemplated by the Registration
Statement and each Prospectus, there has been no Material Adverse Effect
from the dates as of which information is given in the Registration
Statement and each Prospectus.
(e) PricewaterhouseCoopers LLP, whose report appears in the
Company's most recent Annual Report on Form 10-K which is incorporated by
reference in each Prospectus, are independent accountants as required by
the Act and the Rules and Regulations.
(f) On the Delivery Date (as defined in Paragraph 6 hereof) (i) the
Indenture will have been validly authorized, executed and delivered by the
Company and duly qualified under the Trust Indenture Act and will
constitute the legally binding obligation of the Company, (ii) the
Underwritten Securities will have been validly authorized and executed
and, upon payment therefor as provided in this Agreement, will be validly
issued and outstanding, and will constitute legally binding obligations of
the Company entitled to the benefits of the Indenture, and (iii) each
Underwritten Security and the Indenture will conform to the descriptions
thereof contained in the Prospectus.
(g) This Agreement has been validly authorized, executed and
delivered by the Company.
(h) The Company has been duly incorporated and is validly existing
and in good standing under the laws of the State of New Jersey, is duly
qualified to do business and in good standing as a foreign corporation in
each jurisdiction in which its ownership of properties or the conduct of
its business requires such qualification, except where the failure to so
qualify would not have a Material Adverse Effect, and has power and
authority necessary to own or hold its properties, to conduct the business
in which it is engaged and to enter into and perform its obligations under
this Agreement.
(i) There is no material action, suit or proceeding before any court
or governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company, which is required to be disclosed in any Prospectus (other than
as disclosed therein), or which might reasonably be expected to result in
a Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement or the
performance by the Company of its obligations hereunder.
<PAGE>
4
(j) The financial statements filed as part of the Registration
Statement or included in any Preliminary Prospectus present, or (in the
case of any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the Commission
after the date as of which this representation is being made) will present
at all times during the period specified in Paragraph 7(c) hereof, fairly
the financial condition and results of operations of the Company, at the
dates and for the periods indicated, and have been, and (in the case of
any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the Commission
after the date as of which this representation is being made) will be at
all times during the period specified in Paragraph 7(c) hereof, prepared
in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules incorporated by reference in the Prospectus present
fairly in accordance with GAAP the information required to be stated
therein. Any pro forma financial statements and any related notes thereto
incorporated by reference in the Registration Statement and the Prospectus
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to pro
forma financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein.
(k) The documents incorporated by reference into any Preliminary
Prospectus or Prospectus have been, and (in the case of any amendment or
supplement to any such document, or any material incorporated by reference
in any such document, filed with the Commission after the date as of which
this representation is being made) will be at all times during the period
specified in Paragraph 7(c) hereof, prepared by the Company in conformity
with the applicable requirements of the Act, the Rules and Regulations and
the Exchange Act and the rules and regulations of the Commission
thereunder and such documents have been, or (in the case of any amendment
or supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date
as of which this representation is being made) will be at all times during
the period specified in Paragraph 7(c) hereof, timely filed as required
thereby.
(l) There are no contracts or other documents which are required to
be filed as exhibits to the Registration Statement by the Act or by the
Rules and Regulations, or which were required to be filed as exhibits to
any document incorporated by reference in any Prospectus by the Exchange
Act or the rules and regulations of the Commission thereunder, which have
not been filed as exhibits to the Registration Statement or to such
document or incorporated therein by reference as permitted by the Rules
and Regulations or the rules and regulations of the Commission under the
Exchange Act as required.
(m) The Company has filed a petition or petitions with the New
Jersey Board of Public Utilities (the "BPU") with respect to the issue and
sale of securities, including the
<PAGE>
5
Underwritten Securities. The BPU has entered its order authorizing the
issuance and sale thereof, subject to the limitations on the terms and
conditions of such issuance and such sale set forth in such order, and
such order has become final and non-appealable.
(n) The Company has good and valid title to all or substantially all
of its properties, except as otherwise indicated in the Prospectus.
(o) The Company is not, and upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment company"
as such terms are defined in the Investment Company Act of 1940, as
amended (the "1940 Act").
2. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
each Underwriter, severally and not jointly, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
and on the other terms set forth in Schedule I hereto, the principal amount of
the Underwritten Securities set forth opposite its name in Schedule II hereto.
3. Any offer to purchase Underwritten Securities by institutional
investors solicited by the Underwriters for delayed delivery shall be made
pursuant to contracts substantially in the form of Exhibit A attached hereto,
with such changes therein as the Company and the Representative may approve
(each, a"Delayed Delivery Contract"). The Company shall have the right, in its
sole discretion, to approve or disapprove each such institutional investor.
Underwritten Securities which are subject to Delayed Delivery Contracts are
herein sometimes called "Delayed Delivery Underwritten Securities" and
Underwritten Securities which are not subject to Delayed Delivery Contracts are
herein sometimes called "Immediate Delivery Underwritten Securities".
Contemporaneously with the purchase on the Delivery Date by the
Underwriters of the Immediate Delivery Underwritten Securities pursuant to this
Agreement, the Company will pay to the Representative, for the account of the
Underwriters, the compensation specified in Schedule I hereto for arranging the
sale of Delayed Delivery Underwritten Securities. The Underwriters shall have no
responsibility with respect to the validity or performance of any Delayed
Delivery Contracts.
For the purposes of determining the principal amount of Immediate Delivery
Underwritten Securities to be purchased by each Underwriter, there shall be
deducted from the principal amount of Underwritten Securities to be purchased by
such Underwriter as set forth in Schedule II hereto that portion of the
aggregate principal amount of Delayed Delivery Underwritten Securities that the
principal amount of Underwritten Securities to be purchased by
<PAGE>
6
such Underwriter as set forth in Schedule II hereto bears to the aggregate
principal amount of Underwritten Securities set forth in Schedule II to be
purchased by all Underwriters (in each case, as adjusted by the Representative
to avoid fractions of the minimum principal amount in which the Underwritten
Securities may be issued), except to the extent that the Representative
determines, in its discretion, that such deduction shall be otherwise than in
such proportion and so advises the Company.
4. The Company shall not be obligated to deliver any Underwritten
Securities except upon payment for all Immediate Delivery Underwritten
Securities to be purchased pursuant to this Agreement as hereinafter provided.
5. If any Underwriter defaults in the performance of its obligations under
this Agreement, the remaining non-defaulting Underwriters, if any, shall be
obligated to purchase the Immediate Delivery Underwritten Securities which the
defaulting Underwriter agreed but failed to purchase in the respective
proportions which the principal amount of Underwritten Securities set forth in
Schedule II hereto to be purchased by each remaining non-defaulting Underwriter
set forth therein bears to the aggregate principal amount of Underwritten
Securities set forth therein to be purchased by all the remaining non-defaulting
Underwriters; provided that the remaining non-defaulting Underwriters shall not
be obligated to purchase any Immediate Delivery Underwritten Securities if the
aggregate principal amount of Immediate Delivery Underwritten Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase exceeds
9.09% of the total principal amount of Underwritten Securities, and any
remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the principal amount of Underwritten Securities set forth in
Schedule II hereto to be purchased by it. If the foregoing maximum percentages
are exceeded, the remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Representative who so agree, shall have the
right, but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the Immediate Delivery Underwritten Securities. If
the remaining Underwriters or other underwriters satisfactory to the
Representative do not elect to purchase the Immediate Delivery Underwritten
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company, except that the Company will continue
to be liable for the payment of expenses as set forth in Paragraph 7(k) hereof.
Nothing contained in this Paragraph 5 shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Immediate Delivery Underwritten Securities of a defaulting or withdrawing
Underwriter, either the Representative or the Company may postpone the Delivery
Date for up to seven full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement, any Prospectus or in any other document
or arrangement.
6. Delivery of and payment for the Immediate Delivery Underwritten
Securities shall be made at such address, date and time as may be specified in
Schedule I hereto. This date and time
<PAGE>
7
are sometimes referred to collectively as the "Delivery Date". On the Delivery
Date the Company shall deliver the Immediate Delivery Underwritten Securities to
The Depository Trust Company, on behalf of the Representative, for the account
of each Underwriter against payment to the Company by wire transfer of
immediately available funds to a bank account designated by the Company. Time
shall be of the essence, and delivery at the time and place specified pursuant
to this Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Immediate Delivery Underwritten Securities shall
be in registered form and in such denominations as may be set forth on Schedule
I hereto. The certificates representing the Immediate Delivery Underwritten
Securities shall be registered in the name of Cede & Co. and shall be made
available for inspection by the Representative in New York, New York not later
than 2:00 P.M., local time, on the business day prior to the Delivery Date.
7. The Company agrees:
(a) To furnish promptly to the Representative and to counsel for the
Underwriters a conformed copy of the Registration Statement as originally
filed and each amendment or supplement thereto filed prior to the date
hereof or relating to or covering the Underwritten Securities and a copy
of each Prospectus filed with the Commission, including all documents
incorporated therein by reference and all consents and exhibits filed
therewith;
(b) To deliver promptly to the Representative such reasonable number
of the following documents as the Representative may request: (i)
conformed copies of the Registration Statement (excluding exhibits other
than the computation of the ratio of earnings to fixed charges, the
Indenture and this Agreement), (ii) each Prospectus and (iii) any
documents incorporated by reference in any Prospectus;
(c) During such period following the date hereof as, in the opinion
of counsel for the Underwriters, any Prospectus is required by law to be
delivered, to comply with the Act, the Exchange Act, the Trust Indenture
Act and the rules and regulations under each thereof, so as to permit the
completion of the distribution of the Underwritten Securities as
contemplated in this Agreement and in each Prospectus. If at any time when
a prospectus is required by the Act to be delivered in connection with
sales of the Underwritten Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the reasonable
opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement any Prospectus in order that
such Prospectus will not include any untrue statements of a material fact
or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement any Prospectus in order to comply with
the requirements of the Act or the Rules and Regulations, the Company
shall promptly prepare and file with the Commission, subject to Paragraph
(d) below, such amendment or supplement as may be necessary to correct
such statement or omission or
<PAGE>
8
to make the Registration Statement or any such Prospectus comply with such
requirements, and the Company shall furnish to the Underwriters such
number of copies of such amendment or supplement as the Underwriters may
reasonably request;
(d) Prior to filing with the Commission during the period referred
to in (c) above (i) any amendment or supplement to the Registration
Statement, (ii) any Prospectus or any amendment or supplement thereto or
(iii) any document incorporated by reference in any of the foregoing or
any amendment or supplement to such incorporated document, to furnish a
copy thereof to the Representative and to counsel for the Underwriters and
not to file any document that shall have been disapproved by the
Representative;
(e) To advise the Representative promptly (i) when any
post-effective amendment to the Registration Statement relating to or
covering the Underwritten Securities becomes effective or any supplement
to any Prospectus shall have been filed, (ii) of any comments from the
Commission or any request or proposed request by the Commission for an
amendment or supplement to the Registration Statement (insofar as the
amendment or supplement relates to or covers the Underwritten Securities),
to any Prospectus, to any document incorporated by reference in any of the
foregoing or for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any order directed to any Prospectus or any
document incorporated therein by reference or the initiation or threat of
any stop order proceeding or of any challenge to the accuracy or adequacy
of any document incorporated by reference in any Prospectus, (iv) of
receipt by the Company of any notification with respect to the suspension
of the qualification of the Underwritten Securities for sale in any
jurisdiction or the initiation or threat of any proceeding for that
purpose and (v) of the occurrence of any event which makes untrue any
statement of a material fact made in the Registration Statement (insofar
as the Registration Statement relates to or covers the Underwritten
Securities) or any Prospectus or which requires the making of a change in
the Registration Statement or any Prospectus in order to make any material
statement therein not misleading;
(f) If, during the period referred to in (c) above, the Commission
shall issue a stop order suspending the effectiveness of the Registration
Statement, to make every reasonable effort to obtain the lifting of that
order at the earliest possible time;
(g) As soon as practicable, to make generally available to its
security holders and to deliver to the Representative an earnings
statement, conforming with the requirements of Section 11(a) of the Act,
covering a period of at least twelve months beginning after the latest of
(i) the most recent effective date of the Registration Statement, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement that became effective prior to the date of this
Agreement and (iii) the date of the
<PAGE>
9
Company's most recent Annual Report on Form 10-K filed with the Commission
prior to the date of this Agreement;
(h) So long as any of the Underwritten Securities are outstanding,
to furnish to the Representative copies of all reports and financial
statements furnished by the Company to each securities exchange on which
securities issued by the Company may be listed pursuant to requirements of
or agreements with such exchange or to the Commission pursuant to the
Exchange Act or any rule or regulation of the Commission thereunder;
(i) To endeavor to qualify the Underwritten Securities for offer and
sale under the securities laws of such jurisdictions as the Representative
may reasonably request and to maintain such qualifications in effect for
as long as may be required for the distribution of the Underwritten
Securities; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject;
(j) To use its best efforts to obtain the listing of the
Underwritten Securities on the securities exchange, if any, set forth on
Schedule I (the "Stock Exchange") on or prior to the Delivery Date and to
cause such listing to be continued so long as any amount of the Securities
remains outstanding; to furnish from time to time any and all documents,
instruments, information and undertakings that may be necessary in order
to effect such listing; and to maintain the same until none of the
Underwritten Securities is outstanding or until such time as payment of
principal of and premium, if any, and interest on all the Underwritten
Securities has been duly provided for, whichever is earlier; provided that
if the Company can no longer reasonably maintain such listing, the Company
shall use its best efforts to obtain and maintain the quotation for, or
listing of, the Underwritten Securities on such other securities exchange
or exchanges as the Company may, with the approval of the Representative,
determine;
(k) To pay the costs incident to the authorization, issuance, sale
and delivery of the Underwritten Securities and any taxes payable in that
connection; the costs incident to the preparation, printing and filing
under the Act of the Registration Statement and any amendments,
supplements and exhibits thereto; the costs incident to the preparation,
printing and filing of any document and any amendments and exhibits
thereto required to be filed by the Company under the Exchange Act; the
costs of distributing the Registration Statement as originally filed and
each amendment and post-effective amendment thereof (including exhibits),
any Preliminary Prospectus, each Prospectus and any documents incorporated
by reference in any of the foregoing documents; the costs of printing this
Agreement and the Delayed Delivery Contracts, if any; the fees and
disbursements of the Company's counsel, accountants and other advisors;
the fees and expenses of the Trustee, including the fees and disbursements
of counsel for the Trustee in connection with the Indenture and the
Underwritten Securities, to the extent the
<PAGE>
10
Trustee or its counsel, as the case may be, requires reimbursement
thereof; the costs of any filings with the National Association of
Securities Dealers, Inc.; fees paid to rating agencies in connection with
the rating of the Securities, including the Underwritten Securities; the
fees and expenses of qualifying the Underwritten Securities under the
securities laws of the several jurisdictions as provided in this Paragraph
and of preparing and printing a Blue Sky Memorandum (including fees of
counsel to the Underwriters); the cost of listing the Underwritten
Securities on the Stock Exchange; and all other costs and expenses
incident to the performance of the Company's obligations under this
Agreement; provided that, except as provided in this Paragraph and in
Paragraph 11 hereof, the Underwriters shall pay their own costs and
expenses, including the fees and expenses of their counsel, any transfer
taxes on the Underwritten Securities which they may sell and the expenses
of advertising any offering of the Underwritten Securities made by the
Underwriters;
(l) Until the termination of the offering of the Underwritten
Securities, to timely file all documents, and any amendments to previously
filed documents, required to be filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act; and
(m) During the period beginning on the date hereof and continuing to
the Delivery Date, without the consent of the Representative, not to
offer, sell, contract to sell or otherwise dispose of any debt securities
of the Company with maturities longer than one year, other than the
Underwritten Securities to the Underwriters.
8. (a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto) or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Paragraph
8(d) below) any such settlement is effected with the written consent of
the
<PAGE>
11
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of outside counsel chosen by the
Representative), reasonably incurred in investigating, preparing or
defending against any litigation or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission or any such
alleged untrue statement or omission to the extent that any such expense
is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representative expressly for use in the Registration
Statement (or any amendment thereto) or any Preliminary Prospectus or Prospectus
(or any amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Paragraph 8, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment thereto) or any Preliminary
Prospectus or Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representative expressly for use in the Registration
Statement (or any amendment thereto) or such Preliminary Prospectus or
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties indemnified
pursuant to Paragraph 8(a) above, counsel to the indemnified parties shall be
selected by the Representative, and, in the case of parties indemnified pursuant
to Paragraph 8(b) above, counsel to the indemnified parties shall be selected by
the Company. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses
<PAGE>
12
of more than one counsel (in addition to any local counsel) separate from their
own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Paragraph 8 (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 8(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Paragraph 8 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Underwritten Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the
Underwritten Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Underwritten Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, bear to the aggregate initial offering price of the Underwritten
Securities.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged
<PAGE>
13
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Paragraph 8(e) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Paragraph 8(e). The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Paragraph 8(e) shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Paragraph 8(e), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Underwritten Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
any such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
For purposes of this Paragraph 8(e), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Paragraph 8(e) are several
in proportion to the principal amount of Underwritten Securities set forth
opposite their respective names in Schedule II hereto and not joint.
(f) The indemnity agreements contained in this Paragraph and the
representations, warranties and agreements of the Company in Paragraph 1 and
Paragraph 7 hereof shall survive the delivery of the Underwritten Securities and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
indemnified party.
9. (a) The Representative may terminate this Agreement, by notice to the
Company, at any time at or prior to the delivery of and payment for the
Immediate Delivery Underwritten
<PAGE>
14
Securities, (i) if there has been, since the time of execution of this Agreement
or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company, whether or not arising in the ordinary course of business, the effect
of which is such as to make it, in the judgment of the Representative,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (ii) if there has occurred any
material adverse change in the financial markets in the United States, any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representative,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (iii) if trading in any securities
of the Company or Bell Atlantic Corporation has been suspended or materially
limited by the Commission, or if trading generally on the American Stock
Exchange or the New York Stock Exchange or in the Nasdaq National Market has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) if a banking moratorium has been declared by either Federal or New York
authorities.
(b) If this Agreement is terminated pursuant to this Paragraph 9, such
termination shall be without liability of any party hereto to any other party
hereto except as provided in Paragraph 11 hereof, and provided further that
Paragraphs 1 and 8 shall survive such termination and remain in full force and
effect.
10. The respective obligations of the Underwriters under the Agreement
with respect to the Underwritten Securities are subject to the accuracy, on the
date hereof and on the Delivery Date, of the representations and warranties of
the Company contained herein, to performance by the Company of its obligations
hereunder and to each of the following additional terms and conditions
applicable to the Underwritten Securities.
(a) At or before the Delivery Date, no stop order suspending the
effectiveness of the Registration Statement nor any order directed to any
document incorporated by reference in any Prospectus shall have been
issued and prior to that time no stop order proceeding shall have been
initiated or threatened by the Commission and no challenge shall have been
made to the accuracy or adequacy of any document incorporated by reference
in any Prospectus; any request of the Commission for inclusion of
additional information in the Registration Statement or any Prospectus or
otherwise shall have been complied with; and after the date hereof the
Company shall not have filed with the Commission any amendment or
supplement to the Registration Statement or any Prospectus (or any
document incorporated by reference therein) that shall have been
disapproved by the Representative.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that the Registration Statement
or any Prospectus contains an
<PAGE>
15
untrue statement of a fact which, in the opinion of counsel for the
Underwriters, is material or omits to state a fact which, in the opinion
of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Underwritten
Securities, the Indenture and the form of the Registration Statement, each
Prospectus (other than financial statements and other financial data) and
all other legal matters relating to this Agreement and the transactions
contemplated hereby shall be satisfactory in all respects to Simpson
Thacher & Bartlett, counsel for the Underwriters, and the Company shall
have furnished to such counsel all documents and information that such
counsel may reasonably request to enable it to pass upon such matters.
(d) The General Counsel of the Company shall have furnished to the
Representative his opinion addressed to the Underwriters and dated the
Delivery Date, as General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of New
Jersey;
(ii) The Company is duly qualified to do business and is in
good standing as a foreign corporation in all jurisdictions in which
its ownership of property or the conduct of its business requires
such qualification (except where the failure to so qualify would not
have a Material Adverse Effect) and has all power and authority
necessary to own its properties and conduct the business in which it
is engaged as described in the Prospectus;
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust
Indenture Act and, assuming due authentication, execution and
delivery by the Trustee, constitutes a valid and legally binding
instrument of the Company enforceable in accordance with its terms;
(iv) The Immediate Delivery Underwritten Securities have been
duly authorized, executed and issued by the Company and, assuming
due authentication thereof by the Trustee and upon payment and
delivery in accordance with this Agreement, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms and entitled to the benefits of the
Indenture;
(v) The Delayed Delivery Underwritten Securities, if any, have
been duly authorized and, when duly executed and issued by the
Company and, assuming due authentication thereof by the Trustee and
upon payment and delivery
<PAGE>
16
by the respective purchasers thereof in accordance with the terms of
the related Delayed Delivery Contracts, will constitute valid and
legally binding obligations of the Company, enforceable in
accordance with their terms and entitled to the benefits of the
Indenture;
(vi) The Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by the purchasers thereunder,
are valid and legally binding obligations of the parties thereto;
(vii) The statements made in each Prospectus under the caption
"Description of Securities" (or a comparable caption), insofar as
they purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects;
(viii) The Registration Statement is effective under the Act
and, to the knowledge of such counsel, no stop order suspending its
effectiveness has been issued and no proceeding for that purpose is
pending or threatened by the Commission;
(ix) No order issued by the Commission directed to any
document incorporated by reference in any Prospectus has been issued
and, to the knowledge of such counsel, no challenge has been made by
the Commission to the accuracy or adequacy of any such document;
(x) Such counsel does not know of any litigation or any
governmental proceeding pending or threatened against the Company
which would affect the subject matter of this Agreement or is
required to be disclosed in any Prospectus (including the documents
incorporated by reference therein) which is not disclosed and
correctly summarized therein;
(xi) To the best of such counsel's knowledge, the Company is
not in violation of its corporate charter or by-laws or in default
under any material agreement, indenture or instrument;
(xii) This Agreement has been duly authorized, executed and
delivered by the Company;
(xiii) The execution, delivery and performance of this
Agreement and the Delayed Delivery Contracts, if any, and compliance
by the Company with the provisions of the Underwritten Securities
and the Indenture will not conflict with, or
<PAGE>
17
result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company pursuant to the
terms of, or constitute a default under, any agreement, indenture or
instrument known to such counsel, or result in a violation of the
corporate charter or by-laws of the Company or, to the best of such
counsel's knowledge, any statute, order, rule or regulation of any
court or governmental agency having jurisdiction over the Company or
its properties;
(xiv) All legally required proceedings in connection with the
authorization, issue and validity of the Underwritten Securities and
the sale of the Underwritten Securities by the Company in accordance
with this Agreement have been taken, and all legally required
orders, consents or other authorizations or approvals of the BPU and
of any other public boards or bodies have been obtained; and
(xv) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined
in the 1940 Act.
Such counsel may state that the opinions set forth in paragraphs
(iii), (iv), (v) and (vi) above are subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
Such opinion shall also state that the Registration Statement and
each Prospectus as of their respective effective and issue dates complied
as to form in all material respects with the requirements of the Act and
the Trust Indenture Act and the rules and regulations of the Commission
under said Acts (except that no opinion need be expressed as to the
financial statements and other financial data contained herein) and each
document incorporated by reference in each Prospectus as filed under the
Exchange Act complied when so filed as to form in all material respects
with the applicable requirements of the Exchange Act and the rules and
regulations of the Commission thereunder (except that no opinion need be
expressed as to the financial statements and other financial data
contained therein).
Such opinion shall also contain a statement that such counsel has no
reason to believe that (i) the Registration Statement, on the date it
became effective (or, with respect to the Registration Statement, if the
Company has filed an Annual Report on Form 10-K since its effective date,
the date of the Company's most recent Annual Report on Form 10-K),
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading, or (ii) the Prospectus, as of its
date and as of the Delivery Date, contains an untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading.
(e) At the Delivery Date, there shall not have been, since the date
hereof or since the
<PAGE>
18
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company,
whether or not arising in the ordinary course of business, and the
Representative shall have received a certificate of the Chairman of the
Board, the President, the Chief Financial Officer or a Vice President of
the Company, and the Treasurer or an Assistant Treasurer of the Company,
dated the Delivery Date, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in
Paragraph 1 hereof are true and correct with the same force and effect as
though expressly made at and as of the Delivery Date, (iii) the Company
has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the Delivery Date and (iv) no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or
are pending or are contemplated by the Commission.
(f) If Underwritten Securities in bearer form are being delivered by
the Company on the Delivery Date in a jurisdiction other than the United
States, the Company shall have furnished to the Representative such legal
opinion or opinions as the Representative may reasonably request addressed
to the Underwriters and dated the Delivery Date, with respect to matters
relating to the offering, sale and delivery of the Underwritten Securities
in such jurisdiction.
(g) The Company shall have furnished to the Representative (i) a
letter of PricewaterhouseCoopers LLP, addressed to the Underwriters and
dated the date hereof of the type described in the American Institute of
Certified Public Accountants' Statement on Auditing Standards No. 72 and
covering such specified financial statement items as counsel for the
Underwriters may reasonably have requested and (ii) a letter of
PricewaterhouseCoopers LLP, addressed to the Underwriters and dated the
Delivery Date, stating, as of the date of such letter (or, with respect to
matters involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as of a
date not more than five days prior to the date of such letter), the
conclusions and findings of such firm with respect to the financial
information and other matters covered by its letter referred to in
subclause (i) above, confirming in all material respects the conclusions
and findings set forth in such prior letter.
(h) Simpson Thacher & Bartlett shall have furnished to the
Representative its opinion addressed to the Underwriters and dated the
Delivery Date, as counsel for the Underwriters, covering the matters set
forth in Paragraph 10(d), except clauses (ii), (viii), (ix), (x), (xi) and
(xiii) thereof.
(i) The BPU shall have granted authorization, and on the Delivery
Date such authorization shall be in full force and effect, permitting the
issuance and sale of the Underwritten Securities upon the terms and
conditions hereunder set forth or contemplated and containing no provision
unacceptable to the Underwriters, and, all conditions precedent to the
issuance and sale of the Underwritten Securities contained therein shall
have been fulfilled.
<PAGE>
19
(j) The Underwritten Securities shall have been accepted for listing
on the Stock Exchange (if any), subject to official notice of issuance.
(k) At the Delivery Date, the Underwritten Securities shall be rated
at least "Aa2" by Moody's Investor's Service Inc., "AA" by Standard &
Poor's Ratings Group, a division of McGraw-Hill, Inc., and "AAA" by Duff &
Phelps Credit Rating Co., and the Company shall have delivered to the
Representative a letter dated the Delivery Date from each such rating
agency or other evidence satisfactory to the Representative, confirming
that the Underwritten Securities have such ratings; and since the date of
this Agreement, there shall not have occurred a downgrading in the rating
assigned to the Underwritten Securities or any of the Company's other debt
securities by any such rating agency, and, after the date hereof, no such
rating agency shall have publicly announced that it has withdrawn or has
put under surveillance or review with negative implications, including
putting on what is commonly termed a "watch list," its rating of the
Underwritten Securities or any of the Company's other debt securities.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to counsel
for the Underwriters.
11. If the Company shall fail to tender the Immediate Delivery
Underwritten Securities for delivery to the Underwriters for any reason
permitted under this Agreement, or if the Underwriters shall decline to purchase
the Immediate Delivery Underwritten Securities for any reason permitted under
this Agreement (other than pursuant to Paragraph 5 hereof), the Company shall
reimburse the Underwriters for reasonable fees and expenses of their counsel and
for such other out-of-pocket expenses as shall have been incurred by them in
connection with this Agreement and the proposed purchase of Immediate Delivery
Underwritten Securities and the solicitation of any purchases of the Delayed
Delivery Underwritten Securities, and upon demand the Company shall pay the full
amount thereof to the Representative. If this Agreement is terminated pursuant
to Paragraph 5 hereof by reason of the default of one or more Underwriters, the
Company shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
12. The Company shall be entitled to act and rely upon any request,
consent, notice or agreement by, or on behalf of, the Representative. Any notice
by the Company to the Underwriters shall be sufficient if given in writing or by
telegraph addressed to the Representative at its address set forth in Schedule I
hereto, and any notice by the Underwriters to the Company shall be sufficient if
given in writing or by telegraph addressed to the Company at 540 Broad Street,
Newark, NJ 07101, Attention of the Treasurer.
13. This Agreement shall be binding upon the Underwriters, the Company,
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of
<PAGE>
20
Section 15 of the Act and (b) the indemnity agreement of the Underwriters
contained in Paragraph 8 hereof shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Paragraph, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
14. For purposes of this Agreement, "business day" means any day on which
the New York Stock Exchange, Inc. is open for trading.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
<PAGE>
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement shall represent a binding agreement among the Company and the
several Underwriters.
Very truly yours,
BELL ATLANTIC -- NEW JERSEY, INC.,
a New Jersey corporation,
By:
-------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date first above
written.
- ------------------------------,
a ,
By: ---------------------------
Authorized Signatory
For itself and as Representative of the other Underwriters named in Schedule II
to the foregoing Agreement.
<PAGE>
SCHEDULE I
Underwriting Agreement, dated __________, ________.
Registration Statement Nos. 33-49851 and ___________
Representative and Address:
Underwritten Securities
Designation:
Principal amount: $
Indenture: Indenture, dated as of December 22, 1993,
between Bell Atlantic -- New Jersey, Inc.
and First Union National Bank, as Trustee.
Date of Maturity:
Interest Rate:
Purchase Price: % of the principal amount thereof.
Redemption Provisions:
Authorized Denominations: $1,000 and integral multiples thereof.
Stock Exchange Listing:
Delivery Date, Time and Location: ________, ______ at 10:00 a.m. at the
offices of Simpson Thacher & Bartlett,
425 Lexington Avenue, New York, NY 10017.
<PAGE>
SCHEDULE II
Name of Underwriter Principal
Amount of
Underwritten
Securities
$
$
Total
$
=
<PAGE>
EXHIBIT A
$
BELL ATLANTIC -- NEW JERSEY, INC.
DEBT SECURITIES
DELAYED DELIVERY CONTRACT
[DATE]
BELL ATLANTIC -- NEW JERSEY, INC.
540 Broad Street
Newark, NJ 07101
Dear Sirs:
The undersigned hereby agrees to purchase from Bell Atlantic -- New
Jersey, Inc., a New Jersey corporation (the "Company"), and the Company hereby
agrees to sell to the undersigned,
$[ ]
principal amount of the Company's above-captioned securities (the "Securities"),
offered by the Company's prospectus dated May [ ], 1999, as supplemented by the
prospectus supplement dated _______, ______ (collectively, the "Prospectus"),
receipt of a copy of which is hereby acknowledged, at a purchase price of % of
the principal amount thereof plus accrued interest from to the Delivery Date (as
defined in the next paragraph) and on the further terms and conditions set forth
in this Contract.
Payment for and delivery of the Securities to be purchased by the
undersigned shall be made on ___________, _____, herein called the "Delivery
Date".
At 10:00 A.M., New York City time, on the Delivery Date, the
Securities to be purchased by the undersigned hereunder will be delivered by the
Company to the undersigned, and the undersigned will accept delivery of such
Securities and will make payment to the Company of the purchase price therefor,
at the office of . Payment will be certified or official bank check payable in
next-day funds settled through the New York Clearing House to or upon the order
of the Company. The Securities will be delivered in such authorized forms and
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than two
full business days prior to the Delivery Date, or, if the undersigned fails to
make a timely designation in the foregoing manner, in the form of one definitive
fully registered certificate representing the Securities in the above principal
amount, registered in the name of the undersigned.
This Contract will terminate and be of no further force and effect
after ________, _____, unless (i) on or before such date it shall have been
executed and delivered by both parties hereto or (ii) the Company shall have
sold to the Underwriters named in the Prospectus the Immediate
<PAGE>
25
Delivery Underwritten Securities (as defined in the Underwriting Agreement
referred to in the Prospectus) and the Company shall have mailed or delivered to
the undersigned at its address set forth below a notice to that effect, stating
the date of the occurrence thereof, accompanied by copies of the opinion of
counsel for the Company delivered to such Underwriters pursuant to Paragraph
10(d) of the Underwriting Agreement.
The obligation of the undersigned to accept delivery and make payment
for the Securities on the Delivery Date will be subject to the condition that
the Securities shall not, on the Delivery Date, be an investment prohibited by
the laws of the jurisdiction to which the undersigned is subject, the
undersigned hereby representing that such an investment is not so prohibited on
the date hereof. This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of any Delayed Delivery Contract (as
defined in said Underwriting Agreement) is in the Company's sole discretion and,
without limiting the foregoing, need not be on a first-come, first-served basis.
If this Contract is acceptable to the Company, it is requested that the Company
sign the form of acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This will become a
binding contract between the Company and the undersigned when such counterpart
is so mailed or delivered.
Very truly yours,
By:
------------------------------------
---------------------------------------
Title
---------------------------------------
Address
Accepted as of
BELL ATLANTIC -- NEW JERSEY, INC.
By:
------------------------------
Title
- --------------------------------------------------------------------------------
NEW JERSEY BELL TELEPHONE COMPANY
and
FIRST FIDELITY BANK, NATIONAL ASSOCIATION, NEW JERSEY
Trustee
-----------------------
Indenture
Dated as of December 22, 1993
-----------------------
Providing for Issuance of
Securities in Series
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE 1
Section 1.01. Definitions 1
Section 1.02. Other Definitions 4
Section 1.03. Incorporation by Reference of Trust Indenture Act 4
ARTICLE 2
THE SECURITIES 5
Section 2.01. Issuable in Series 5
Section 2.02. Establishment of Terms and Form of Series of Securities 5
Section 2.03. Execution, Authentication and Delivery 7
Section 2.04. Registrar and Paying Agent 9
Section 2.05. Payment on Securities 9
Section 2.06. Paying Agent to Hold Money in Trust 10
Section 2.07. Securityholder Lists; Ownership of Securities 10
Section 2.08. Transfer and Exchange 11
Section 2.09. Replacement Securities 12
Section 2.10. Outstanding Securities 13
Section 2.11. Treasury Securities 13
Section 2.12. Temporary Securities 14
Section 2.13. Cancellation 14
Section 2.14. Defaulted Interest 15
ARTICLE 3
REDEMPTION 15
Section 3.01. Notice to Trustee 15
Section 3.02. Selection of Securities to be Redeemed 15
Section 3.03. Notice of Redemption 16
Section 3.04. Effect of Notice of Redemption; Payment upon Surrender 17
Section 3.05. Deposit of Redemption Price 17
Section 3.06. Securities Redeemed in Part 17
Section 3.07. Redemption at the Option of Holders 17
ARTICLE 4
COVENANTS 17
Section 4.01. Payment of Securities 17
Section 4.02. Lien on Assets 18
Section 4.03. Reports by the Company 18
ARTICLE 5
SUCCESSOR CORPORATION 19
Section 5.01. When Company May Merge, etc 19
ARTICLE 6
DEFAULTS AND REMEDIES 19
Section 6.01. Events of Default 19
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Section 6.02. Acceleration 21
Section 6.03. Other Remedies Available to Trustee 21
Section 6.04. Waiver of Existing Defaults 21
Section 6.05. Control by Majority 21
Section 6.06. Limitation on Suits by Securityholders 22
Section 6.07. Rights of Holders to Receive Payment 22
Section 6.08. Collection Suits by Trustee 22
Section 6.09. Trustee May File Proofs of Claim 22
Section 6.10. Priorities 23
Section 6.11. Undertaking for Costs 23
ARTICLE 7
TRUSTEE 23
Section 7.01. Duties of Trustee 23
Section 7.02. Rights of Trustee 24
Section 7.03. Individual Rights of Trustee 25
Section 7.04. Trustee's Disclaimer 25
Section 7.05. Notice of Defaults 25
Section 7.06. Reports by Trustee to Holders 25
Section 7.07. Compensation and Indemnity 26
Section 7.08. Replacement of Trustee 26
Section 7.09. Successor Trustee, Agents by Merger, etc 28
Section 7.10. Eligibility; Disqualification 28
ARTICLE 8
DISCHARGE OF INDENTURE 28
Section 8.01. Termination of Company's Obligations 28
Section 8.02. Application of Trust Money 29
Section 8.03. Excess or Unclaimed Money 29
Section 8.04. Indemnity for Government Obligations 30
ARTICLE 9
AMENDMENTS AND WAIVERS 30
Section 9.01. Without Consent of Holders 30
Section 9.02. With Consent of Holders 30
Section 9.03. Compliance with Trust Indenture Act 31
Section 9.04. Revocation and Effect of Consents 32
Section 9.05. Notation on or Exchange of Securities 32
Section 9.06. Trustee Protected 32
Section 9.07. Execution of Supplemental Indentures 32
ARTICLE 10
MISCELLANEOUS 32
Section 10.01. Trust Indenture Act Controls 32
Section 10.02. Notices 32
Section 10.03. Communication by Holders with Other Holders 34
Section 10.04. Certificate and Opinion as to Conditions Precedent 34
Section 10.05. Statements Required in Certificate or Opinion 34
Section 10.06. Rules by Trustee and Agents 34
Section 10.07. Legal Holidays 35
</TABLE>
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Section 10.08. Governing Law 35
Section 10.09. No Adverse Interpretation of Other Agreements 35
Section 10.10. No Recourse Against Others. 35
Section 10.11. Execution in Counterparts 36
</TABLE>
<PAGE>
INDENTURE dated as of December 22, 1993, between NEW JERSEY BELL TELEPHONE
COMPANY, a New Jersey corporation ("Company"), and FIRST FIDELITY BANK, NATIONAL
ASSOCIATION, NEW JERSEY a banking association duly organized and existing under
the laws of the United States of America ("Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures, notes
or other evidences of indebtedness ("Securities') as herein provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, and intending to be legally bound hereby, it
is mutually covenanted and agreed as follows for the equal and ratable benefit
of the Holders of the Securities:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"Affiliate" means any person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, the Company.
"Agent" means any Paying Agent or Registrar.
"Authorized Newspaper" means a newspaper of general circulation, in the
official language of the country of publication or in the English language,
customarily published on each business day. Whenever successive weekly
publications in an Authorized Newspaper are required hereunder they may be made
(unless otherwise expressly provided herein) on the same or different days of
the week and in the same or different Authorized Newspapers.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee thereof.
<PAGE>
2
"Board Resolution" means a copy of a resolution of the Board of Directors,
certified by the Secretary or an Assistant Secretary of the Company to have been
adopted by the Board of Directors and to be in full force and effect on the date
of the certificate, and delivered to the Trustee.
"Company" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor.
"Company Order" means an order signed by two Officers or by any Officer
and an Assistant Treasurer or an Assistant Secretary of the Company.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Holder" or "Securityholder" means a bearer of an Unregistered Security or
of a coupon appertaining thereto or a person in whose name a Registered Security
is registered on the Registrar's books.
"Indenture" means this Indenture as amended or supplemented from time to
time and shall include the forms and terms of particular Series of Securities
established as contem plated hereunder.
"Officer" means the President, any Vice-President, the Treasurer, the
Secretary or the Controller of the Company and the Chairman or a Vice-Chairman
of the Board of Directors, if any.
"Officer's Certificate" means a certificate signed by two Officers or by
any Officer and an Assistant Treasurer or an Assistant Secretary of the Company.
"Opinion of Counsel" means a written opinion of legal counsel who is
acceptable to the Company and the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the stated principal amount thereof to be due and payable
upon declaration of acceleration of the maturity thereof pursuant to Section
6.02.
"principal" of a Security means the principal of the Security plus, when
appropriate, the premium, if any, on the Security.
<PAGE>
3
"Registered Security" means any Security issued hereunder and registered
as to principal and interest by the Registrar.
"Responsible Officer", when used with respect to the Trustee, shall mean
the chairman or any vice-chairman of the board of directors or trustees, the
chairman or any vice chairman of the executive committee of the board of
directors or trustees, the president, any vice-president, the treasurer, the
secretary, any trust officer, any second or assistant vice-president or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with a particular subject.
"SEC" means the Securities and Exchange Commission.
"Series" or "Series of Securities" means a series of Securities.
"Securities" means the debentures, notes or other obligations of the
Company issued, authenticated and delivered under this Indenture.
"TIA" means the Trust Indenture Act of 1939, as amended from time to time
(15 U.S.C.ss.ss. 77aaa-77bbbb) and references to Sections of the TIA herein
shall include successor Sections, if applicable.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor and if, at any time,
there is more than one Trustee, "Trustee" as used with respect to the Securities
of any Series shall mean the Trustee with respect to that Series.
"U.S. person" means a citizen, national or resident of the United States,
a corpora tion, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
"Unregistered Security" means any Security issued hereunder which is not a
Registered Security.
"Yield to Maturity" means the yield to maturity,
<PAGE>
4
calculated by the Company at the time of issuance of a Series of Securities or,
if applicable, at the most recent determination of interest on such Series in
accordance with accepted financial practice.
Section 1.02.. Other Definitions.
Term Section
---- -------
"Bankruptcy Law"......................... 6.01
"Custodian".............................. 6.01
"Event of Default"....................... 6.01
"Legal Holiday".......................... 10.07
"Paying Agent"........................... 2.04
"Registrar".............................. 2.04
"U.S. Government Obligations"............ 8.01
Section 1.03.. Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings assigned to them therein.
Section 1.04.. Rules of Construction. Unless the context otherwise
requires:
1. a term has the meaning assigned to it;
2. an accounting term not otherwise defined has the
<PAGE>
5
meaning assigned to it in accordance with generally accepted accounting
principles;
3. "or" is not exclusive; and
4. words in the singular include the plural, and words in the plural
include the singular.
ARTICLE 2
THE SECURITIES
Section 2.01. Issuable in Series. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
unlimited. The Securities may be issued in one or more Series. There may be
Registered Securities and Unregistered Securities within a Series and the
Unregistered Securities may be subject to such restrictions, and contain such
legends, as may be required by United States laws and regulations. All
Securities within a Series shall be substantially identical except as may
otherwise be provided in or pursuant to a Board Resolution or indenture
supplemental hereto. Subject to the immediately preceding sen tence, Securities
may differ in any respect; provided that all Securities shall be equally and
ratably entitled to the benefits of this Indenture.
Section 2.02. Establishment of Terms and Form of Series of Securities.
(a) At or prior to the issuance of any Series of Securities, the following
shall be established either by or pursuant to a Board Resolution or by an
indenture supplemental hereto:
(1) the title of the Securities of the Series (which title shall
distinguish the Securities of the Series from the Securities of any other
Series and from any other se curities issued by the Company);
(2) any limit upon the aggregate principal amount of the Securities
of the Series which may be authenticated and delivered under this
Indenture (which limit shall not pertain to Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities of the Series pursuant to Sections 2.08, 2.09, 2.12,
3.06 or 9.05);
(3) the date or dates on which the principal of the Securities of
the Series is payable;
<PAGE>
6
(4) the rate or rates at which the Securities of the Series shall
bear interest, if any, or the method of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue, the
dates on which such interest shall be payable and, with respect to
Registered Securities, the record date for the interest payable on any
interest payment date;
(5) the place or places where the principal of and interest on
Registered and Unregistered, if any, Securities of the Series shall be
payable;
(6) the period or periods within which, the price or prices at
which, and the terms and conditions upon which, Securities of the Series
may be redeemed, in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the Series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option of
a Holder thereof and the period or periods within which, the price or
prices at which, and the terms and conditions upon which, Securities of
the Series shall be redeemed or purchased, in whole or in part, pursuant
to such obligation;
(8) if in other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the Series
shall be issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the Series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
6.02;
(10) whether Securities of the Series shall be issuable as
Registered Securities or Unregistered Securities (with or without interest
coupons), or both, and any restrictions applicable to the offering, sale
or delivery of Unregistered Securities and whether, and the terms upon
which, Unregistered Securities of a Series may be exchanged for Registered
Securities of the same Series and vice versa;
(11) whether and under what circumstances the Company will pay
additional amounts on the Securities of that Series held by a person who
is not a U.S. person in respect of taxes or similar charges withheld or
deducted
<PAGE>
7
and, if so, whether the Company will have the option to redeem such
Securities rather than pay such additional amounts;
(12) the currency or currencies, which may be a composite currency
such as the European Currency Unit, of payment of principal of and
premium, if any, and interest on the Debt Securities, if other than U.S.
dollars;
(13) any other terms of the Series (which terms shall not be
inconsistent with the provisions of this Indenture) including any terms
which may be required by or advisable under United States laws or
regulations or advisable in connection with the marketing of Securities of
that Series;
(14) the form of the Securities (or forms thereof if Unregistered
and Registered Securities shall be issuable in such Series, including such
legends as may be required by United States laws or regulations, the form
of any coupons or temporary global Security which may be issued and the
forms of any certificates which may be required hereunder or under United
States laws or regulations in connection with the offering, sale, delivery
or exchange of Unregistered Securities); and
(15) the extent to which any Securities will be issuable in
temporary or permanent global form, and the manner in which any payments
on a temporary or permanent global Security will be made.
(b) If the terms and form or forms of any Series of Securities are
established by or pursuant to a Board Resolution, the Company shall deliver a
copy of such Board Resolution to the Trustee at or prior to the issuance of such
Series with (1) the form or forms of Security which have been approved attached
thereto, or (2) if such Board Resolution authorizes a specific Officer or
Officers to approve the terms and form or forms of the Securities, a certificate
of such Officer or Officers approving the terms and form or forms of Security
with such form or forms of Securities attached thereto.
Section 2.03. Execution, Authentication and Delivery. (a) Securities shall
be executed on behalf of the Company by its Chairman of the Board of Directors
or a Vice-Chairman of the Board of Directors, if any, or the President or a
Vice-President, and by its Treasurer or an Assistant Treasurer or its Secretary
or an Assistant Secretary. Signatures shall be manual or facsimile. The
Company's seal shall be reproduced on the
<PAGE>
8
Securities and may, but need not, be attested. The coupons of Unregistered
Securities shall bear the facsimile signature of the Treasurer or an Assistant
Treasurer of the Company.
(b) If an Officer, an Assistant Treasurer or an Assistant Secretary whose
signature is on a Security or coupon no longer holds that office at the time the
Security is authenticated, the Security or coupon shall be valid nevertheless.
(c) A Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent and no coupon shall be valid
until the Security to which it appertains has been so authenticated. Such
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture. Each Unregistered Security shall be dated the date of its
original issuance and each Registered Security shall be dated the date of its
authentication.
(d) The Trustee shall at any time, and from time to time, authenticate and
deliver Securities of any Series executed and delivered by the Company for
original issue upon receipt by the Trustee of (i) a Company Order for the
authentication and delivery of such Securities, (ii) if the terms and form or
forms of the Securities of such Series have been established by or pursuant to a
Board Resolution as permitted by Section 2.02, a copy of such Board Resolution
and any certificate that may be required pursuant to Section 2.02(b) and (iii)
an Opinion of Counsel stating:
(1) if the form of such Securities has been established by or
pursuant to a Board Resolution as permitted by Section 2.02, that such
form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by or
pursuant to a Board Resolution as permitted by Section 2.02, that such
terms have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of
<PAGE>
9
creditors' rights and to general equity principles.
If the terms and form or forms of such Securities have been established by
or pursuant to a Board Resolution as permitted by Section 2.02, the Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will materially and adversely affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Notwithstanding the foregoing, (i) delivery of Unregistered Securities
will be made only outside the United States and its possessions and (ii)
Unregistered Securities will be released in definitive form to the person
entitled to physical delivery thereof only upon presentation of a certificate in
the form prescribed by the Company, until such time as the Company has notified
the Trustee and the Registrar that upon delivery of Unregistered Securities
under any other circumstances, the Company would not suffer adverse consequences
under the provisions of United States law or regulations in effect at the time
of the delivery of Unregistered Securities.
(e) The aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal amount for such
Series set forth in the Board Resolution (or certificate of an Officer or
Officers) or supplemental indenture pursuant to Section 2.02.
(f) The Trustee may appoint an authenticating agent to authenticate
Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate.
Section 2.04. Registrar and Paying Agent. The Company shall maintain in
the United States an office or agency where Registered Securities may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where (subject to Sections 2.05 and 2.08) Securities may be
presented for payment or, in the case of Unregistered Securities, for exchange
("Paying Agent"). With respect to any Series of Securities issued in whole or in
part as Unregistered Securities, the Company shall maintain one or more Paying
Agents located outside the United States and its possessions and shall maintain
such Paying Agents for a period of two years after the principal of such
Unregistered Securities has become due and payable. During any period thereafter
for which it is necessary in order to conform to United States tax law or
regulations, the Company
<PAGE>
10
will maintain a Paying Agent outside the United States and its possessions to
which the Unregistered Securities or coupons appertaining thereto may be
presented for payment and will provide the necessary funds therefor to such
Paying Agent upon reasonable notice. The Registrar shall keep a register with
respect to each Series of Securities issued in whole or in part as Registered
Securities and with respect to their transfer and exchange. The Company may
appoint one or more co-Registrars and one or more additional Paying Agents for
each Series of Securities and the Company may terminate the appointment of any
co-Registrar or Paying Agent at any time upon written notice. The term
"Registrar" includes any co-Registrar. The term "Paying Agent" includes any
additional Paying Agent. The Company shall notify the Trustee of the name and
address of any Agent not a party to this Indenture. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such.
The Company initially appoints First Fidelity Bank, National Association,
Pennsylvania, as Registrar and Paying Agent.
Section 2.05. Payment on Securities. (a) Subject to the following
provisions, the Company will pay to the Trustee the amounts, in such coin or
currency as is at the time legal tender for the payment of public or private
debt, at the times and for the purposes set forth herein and in the text of the
Securities for each Series, and the Company hereby authorizes and directs the
Trustee from funds so paid to it to make or cause to be made payment of the
principal of and interest, if any, on the Securities and coupons of each Series
as set forth herein and in the text of such Securities and coupons. The Trustee
will arrange directly with any Paying Agents for the payment, or the Trustee
will make payment, from funds furnished by the Company, of the principal of and
interest, if any, on the Securities and coupons of each Series by check.
(b) Interest, if any, on Registered Securities of a Series shall be paid
on each interest payment date for such Series to the Holder thereof at the close
of business on the relevant record dates specified in the Securities of such
Series. Interest may be payable by check mailed to such Holder's address as it
appears on the register for Securities of such Series. Principal of Registered
Securities shall be payable only against presentation and surrender thereof at
the office of the Paying Agent, unless the Company shall have otherwise
instructed the Trustee by Company Order.
(c) To the extent provided in the Securities of a Series, (i) interest, if
any, on Unregistered Securities shall be
<PAGE>
11
paid only against presentation and surrender of the coupons for such interest
installments as are evidenced thereby as they mature and (ii) original issue
discount (as defined in Section 1273 of the Internal Revenue Code of 1986, as
amended), if any, on Unregistered Securities shall be paid only against
presentation and surrender of such Securities; in either case at the office of a
Paying Agent located outside of the United States and its possessions, unless
the Company shall have otherwise instructed the Trustee by Company Order.
Principal of Unregistered Securities shall be paid only against presentation and
surrender thereof as provided in the Securities of a Series. If at the time a
payment of principal of or interest, if any, or original issue discount, if any,
on an Unregistered Security or coupon shall become due, the payment of the full
amount so payable at the office or offices of all the Paying Agents outside the
United States and its possessions is illegal or effectively precluded because of
the imposition of exchange controls or other similar restrictions on the payment
of such amount in United States currency, then the Company may instruct the
Trustee to make such payments at the office of a Paying Agent located in the
United States, provided that provision for such payment in the United States
would not cause such Unregistered Security to be treated as a
"registration-required obligation" under United States law and regulations.
Section 2.06. Paying Agent to Hold Money in Trust. The Company shall
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust, for the benefit of Securityholders of any
Series of Securities, or the Trustee, all money held by the Paying Agent for the
payment of principal or interest on such Series of Securities, and that the
Paying Agent will notify the Trustee of any default by the Company in making any
such payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. If the Company or a subsidiary
acts as Paying Agent, it shall segregate the money held by it for the payment of
principal or interest on any Series of Securities and hold such money as a
separate trust fund. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon so doing the Paying Agent shall have
no further liability for the money so paid.
Section 2.07. Securityholder Lists; Ownership of Securities. (a) The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of Holders of each
Series of Securities. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee as of (and not later than ten days after) the record date
for payment of interest on each Series of
<PAGE>
12
Securities (but in any event not less than semiannually), and at such other
times as the Trustee may request in writing, a list, in such form and as of such
date as the Trustee may reasonably require, containing all the information in
the possession or control of the Registrar, the Company or any of its Paying
Agents other than the Trustee as to the names and addresses of Holders of each
such Series of Securities. If there are Unregistered Securities of any Series
outstanding, even if the Trustee is the Registrar, the Company shall furnish to
the Trustee such a list containing such information with respect to Holders of
such Unregistered Securities only.
(b) Ownership of Registered Securities of a Series shall be proved by the
register for such Series kept by the Registrar. Ownership of Unregistered
Securities may be proved by the production of such Unregistered Securities or by
a certificate or affidavit executed by the person holding such Unregistered
Securities or by a depository with whom such Unregistered Securities were
deposited, if the certificate or affidavit is satisfactory to the Company. The
Company, the Trustee and any agent of the Company may treat the bearer of any
Unregistered Security or coupon and the person in whose name a Registered
Security is registered as the absolute owner thereof for all purposes.
Section 2.08. Transfer and Exchange. (a) Where Registered Securities of a
Series are presented to the Registrar with a request to register their transfer
or to exchange them for an equal principal amount of Registered Securities of
the same Series and date of maturity of other authorized denominations, the
Registrar shall register the transfer or make the exchange if its requirements
for such transactions are met. The registration of transfer or exchange shall be
effective only by the surrender of the Registered Securities and the issuance by
the Company and authentication by the Trustee of replacement Registered
Securities.
(b) If both Registered and Unregistered Securities are authorized for a
Series of Securities and the terms of such Securities permit, (i) Unregistered
Securities may be exchanged for an equal principal amount of Registered or
Unregistered Securities of the same Series and date of maturity in any
authorized denominations upon delivery to the Registrar (or a Paying Agent, if
the exchange is for Unregistered Securities) of the Unregistered Security with
all unmatured coupons and all matured coupons in default appertaining thereto
and if all other requirements of the Registrar (or such Paying Agent) and such
Securities for such exchange are met, and (ii) Registered Securities may be
exchanged for an equal principal amount of Unregistered Securities of the same
Series and date of maturity
<PAGE>
13
in any authorized denominations (except that any coupons appertaining to such
Unregistered Securities which have matured and have been paid shall be detached)
upon delivery to the Registrar of the Registered Securities and if all other
requirements of the Registrar (or the Paying Agent to which the Registrar
forwards such Unregistered Securities) and such Securities for such exchange are
met.
Notwithstanding the foregoing, the exchange of Unregistered Securities for
Registered Securities or Registered Securities for Unregistered Securities will
be subject to the satisfaction of the provisions of United States law and
regulations in effect at the time of such exchange, and no exchange of
Registered Securities for Unregistered Securities will be made until the Company
has notified the Trustee and the Registrar that, as a result of such exchange,
the Company would not suffer adverse consequences under such law or regulations.
(c) To permit registrations of transfers and exchanges, the Trustee shall
authenticate Securities upon surrender of Securities for registration of
transfer or for exchange as provided in this Section. The Company will not make
any charge for any registration of transfer or exchange but may require the
payment by the party requesting such registration of transfer or exchange of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
(d) Neither the Company nor the Registrar shall be required (i) to issue,
register the transfer of or exchange Securities of any Series for the period of
15 days immediately preceding the selection of any such Securities to be
redeemed, (ii) to register the transfer of or exchange Securities of any Series
selected, called or being called for redemption as a whole or the portion being
redeemed of any such Securities selected, called or being called for redemption
in part, or (iii) to register the transfer of or exchange Securities of any
Series as to which the Holder has exercised an option to require redemption of
such Security prior to the stated maturity date thereof.
(e) Unregistered Securities or any coupons appertaining thereto shall be
transferable by delivery.
Section 2.09. Replacement Securities. (a) If a mutilated Security or a
Security with a mutilated coupon appertaining to it is surrendered to the
Trustee, the Company shall issue and the Trustee shall authenticate a
replacement Registered Security, if such surrendered security was a Registered
Security, or a replacement Unregistered Security with coupons corresponding to
the coupons appertaining to the
<PAGE>
14
surrendered Security, if such surrendered Security was an Unregistered Security,
of the same Series and date of maturity, if the Trustee's requirements are met.
(b) If the Holder of a Security claims that the Security or any coupon
appertaining thereto has been lost, destroyed or wrongfully taken, the Company
shall execute and the Trustee shall authenticate a replacement Registered
Security, if such Holder's claim pertains to a Registered Security, or a
replacement Unregistered Security with coupons corresponding to the coupons
appertaining to the lost, destroyed or wrongfully taken Unregistered Security or
the Unregistered Security to which such lost, destroyed or wrongfully taken
coupon appertains, if such Holder's claim pertains to an Unregistered Security,
of the same Series and date of maturity, if the Trustee's requirements are met;
provided, however, that the Trustee or the Company may require any such Holder
to provide to the Trustee or the Company security or indemnity sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee, any
Agent or any authenticating agent from any loss which any of them may suffer if
a Security is replaced. The Company may charge the party requesting a
replacement Security for its expenses, and any associated taxes, in replacing a
Security.
(c) Every replacement Security is an additional obligation of the Company.
(d) The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or coupons.
Section 2.10. Outstanding Securities. (a) Securities outstanding at any
time are all Securities authenticated by the Trustee except for those cancelled
by it, those delivered to it for cancellation, and those described in this
Section as not outstanding.
(b) If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
(c) If the Paying Agent holds on a redemption date or maturity date money
sufficient to pay all amounts due on that date on Securities of any Series, then
on and after that date all Securities of such Series that mature or that are to
be redeemed on such date cease to be outstanding and interest on them ceases to
accrue.
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15
(d) A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
(e) In determining whether the Holders of the requisite principal amount
of outstanding Securities of any Series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, the
principal amount of an Original Issue Discount Security that shall be deemed to
be outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 6.02.
Section 2.11. Treasury Securities. In determining whether the Holders of
the requisite principal amount of Securities of any Series have concurred in any
direction, waiver or consent, Securities of such Series owned by the Company or
an Affiliate shall be disregarded, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities of such Series which the Trustee knows are so owned
shall be so disregarded. Securities of such Series owned by the Company which
have been pledged in good faith may be considered by the Trustee if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right to so act
with respect to such Securities and that the pledgee is not the Company or an
Affiliate.
Section 2.12. Temporary Securities. (a) Until definitive Registered
Securities of any Series are ready for delivery, the Company may prepare and
execute and the Trustee shall authenticate temporary Registered Securities of
such Series. Temporary Registered Securities of any Series shall be
substantially in the form of definitive Registered Securities of such Series but
may have variations that the Company considers appropriate for temporary
Securities. Every temporary Registered Security shall be executed by the Company
and authenticated by the Trustee, and registered by the Registrar, upon the same
conditions, and with like effect, as a definitive Registered Security. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate
definitive Registered Securities of the same Series and date of maturity in
exchange for temporary Registered Securities.
(b) Until definitive Unregistered Securities of any Series are ready for
delivery, the Company may prepare and execute and the Trustee shall authenticate
one or more temporary Unregistered Securities, which may have coupons attached
or which may be in the form of a single temporary global Unregistered
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16
Security of that Series. The temporary Unregistered Security or Securities of
any Series shall be substantially in the form approved by or pursuant to a Board
Resolution and shall be delivered to one of the Paying Agents located outside
the United States and its possessions or to such other person or persons as the
Company shall direct against such certification as the Company may from time to
time prescribe by or pursuant to a Board Resolution. The temporary Unregistered
Security or Securities of a Series shall be executed by the Company and
authenticated by the Trustee upon the same conditions, and with like effect, as
a definitive Unregistered Security of such Series, except as provided herein or
therein. A temporary Unregistered Security or Securities shall be exchangeable
for definitive Unregistered Securities at the time and on the conditions, if
any, specified in the temporary Security.
Upon any exchange of a part of a temporary Unregistered Security of a
Series for definitive Unregistered Securities of such Series, the temporary
Unregistered Security shall be endorsed by the Trustee or Paying Agent to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of definitive Unregistered Securities of such Series
so exchanged and endorsed.
Section 2.13. Cancellation. The Company at any time may deliver Securities
and coupons to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities and coupons surrendered to them for
registration of transfer or for exchange or payment. The Trustee shall cancel
all Securities and coupons surrendered for registration of transfer, or for
exchange, payment or cancellation and may dispose of cancelled Securities and
coupons as the Company directs; provided, however, that any Unregistered
Securities of a Series delivered to the Trustee for exchange prior to maturity
shall be retained by the Trustee for reissue as provided herein or in the
Securities of such Series. The Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.14. Defaulted Interest. If the Company defaults on a payment of
interest on a Series of Securities, it shall pay the defaulted interest as
provided in such Securities or in any lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed
and acceptable to the Trustee. With respect to Registered Securities, the
Trustee may pay the defaulted interest, plus any interest payable on the
defaulted interest, to the Holders of such Registered Securities on a subsequent
special record date. The Company shall fix such special record date and the
payment
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17
date. At least 15 days before such special record date, the Company shall mail
to such Holders a notice that states the record date, the payment date and the
amount of interest to be paid, and on or before the payment date the Company
shall deposit such amount with the Trustee.
ARTICLE 3
REDEMPTION
Section 3.01. Notice to Trustee. The Company may, with respect to any
Series of Securities, reserve the right to redeem and pay the Series of
Securities or any part thereof, or may covenant to redeem and pay the Series of
Securities or any part thereof, before maturity at such time and on such terms
as provided for in such Securities. If a Series of Securities is redeemable and
the Company wants or is obligated to redeem all or part of the Series of
Securities pursuant to the terms of such Securities, it shall notify the Trustee
of the redemption date and the principal amount of the Series of Securities to
be redeemed. The Company shall give such notice at least 60 days before the
redemption date (or such shorter notice as may be acceptable to the Trustee).
Section 3.02. Selection of Securities to be Redeemed. If less than all the
Securities of a Series are to be redeemed, the Trustee, not more than 60 days
prior to the redemption date, shall select the Securities of the Series to be
redeemed by a method that complies with the requirements of any stock exchange
on which the Securities of the Series are listed and that the Trustee shall deem
fair and appropriate or, if the Securities are not listed on any stock exchange,
then such Securities shall be redeemed on a pro rata basis or by lot, as the
Trustee may elect. The Trustee shall make the selection from Securities of the
Series that are outstanding and that have not previously been called for
redemption. Securities of the Series and portions of them selected by the
Trustee shall be in amounts of $1,000 or integral multiples of $1,000 or, with
respect to Securities of any Series issuable in other denominations pursuant to
Section 2.02(a)(8), in amounts equal to the minimum principal denomination for
each such Series and integral multiples thereof. Provisions of this Indenture
that apply to Securities of a Series called for redemption also apply to
portions of Securities of that Series called for redemption. The Trustee shall
promptly notify the Company in writing of the Securities selected for redemption
and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
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18
Section 3.03. Notice of Redemption. (a) At least 15 days but not more than
60 days before a redemption date, the Company shall mail a notice of redemption
by first-class mail to each Holder of Registered Securities that are to be
redeemed.
(b) If Unregistered Securities are to be redeemed, notice of redemption
shall be published in an Authorized Newspaper in each of The City of New York,
London and, if such Securities to be redeemed are listed on the Luxembourg Stock
Exchange, Luxembourg once in each of four successive calendar weeks, the first
publication to be not less than 15 nor more than 60 days before the redemption
date.
(c) All notices shall identify the Series of Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) if less than all the outstanding Securities of a Series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed;
(4) the name and address of the Paying Agent;
(5) that Securities of the Series called for redemption and all
unmatured coupons, if any, appertaining thereto must be surrendered to the
Paying Agent to collect the redemption price; and
(6) that interest on Securities of the Series called for redemption
will cease to accrue on and after the redemption date.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense.
Section 3.04. Effect of Notice of Redemption; Payment upon Surrender. Once
notice of redemption is mailed or published, Securities of a Series called for
redemption become due and payable on the redemption date. Upon surrender to the
Paying Agent of Securities to be redeemed together with all unmatured coupons,
if any, appertaining thereto, such Securities shall be paid at the redemption
price plus accrued interest to the redemption date, but installments of interest
due on or prior to the redemption date will be payable, in the case of
Unregistered Securities, to the bearers of the coupons for such
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19
interest upon surrender thereof, and, in the case of Registered Securities, to
the Holders of such Securities of record at the close of business on the
relevant record dates.
Section 3.05. Deposit of Redemption Price. On or before the redemption
date, the Company shall deposit with the Trustee money sufficient to pay the
redemption price of and (unless the redemption date shall be an interest payment
date) interest accrued to the redemption date on all Securities to be redeemed
on that date. Such money shall be held in trust by the Trustee for the Holders
of such Securities.
Section 3.06. Securities Redeemed in Part. Upon surrender of a Security
that is redeemed in part, the Company shall issue and the Trustee shall
authenticate for the Holder of that Security a new Security or Securities of the
same Series, the same form and the same maturity in authorized denominations
equal in aggregate principal amount to the unredeemed portion of the Security
surrendered.
Section 3.07. Redemption at the Option of Holders. Securities of any
Series which are redeemable at the option of the Holders thereof before the
stated maturity date or dates of such Securities shall be redeemed in accordance
with the terms of the Series of the Securities, as set forth in such Securities
or as established by or pursuant to the Board Resolution or supplemental
indenture relating to such Series. Sections 3.01 (second and third sentences),
3.02, 3.03 and 3.04 (first sentence) shall not apply to any redemption of a
Security to be made at the option of the Holder.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Securities. The Company shall pay the principal
of and interest on the Securities on the dates and in the manner provided herein
and in the Securities. An installment of principal or interest shall be
considered paid on the date it is due if the Trustee or Paying Agent holds on
that date money designated for and sufficient to pay the installment.
The Company shall pay interest on overdue principal of a Security of any
Series at the rate of interest (or Yield to Maturity in the case of Original
Issue Discount Securities) borne by such Security; to the extent lawful, it
shall pay interest on overdue installments of interest at the same rate.
Section 4.02. Lien on Assets. If at any time the Company mortgages,
pledges or otherwise subjects to any lien the
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20
whole or any part of any property or assets now owned or hereafter acquired by
it, except as hereinafter provided in this Section 4.02, the Company will secure
the then-outstanding Securities, and any other obligations of the Company which
may then be outstanding and entitled to the benefit of a covenant similar in
effect to this covenant, equally and ratably with the indebtedness or
obligations secured by such mortgage, pledge or lien, for as long as any such
indebtedness or obligation is so secured. The foregoing covenant does not apply
to the creation, extension, renewal or refunding of purchase-money mortgages or
liens, or other liens to which any property or asset acquired by the Company is
subject as of the date of its acquisition by the Company, or to the making of
any deposit or pledge to secure public or statutory obligations or with any
governmental agency at any time required by law in order to qualify the Company
to conduct its business or any part thereof or in order to entitle it to
maintain self-insurance or to obtain the benefits of any law relating to
workmen's compensation, unemployment insurance, old age pensions or other social
security, or with any court, board, commission or governmental agency as
security incident to the proper conduct of any proceeding before it. Nothing
contained in this Indenture prevents an Affiliate from mortgaging, pledging or
subjecting to any lien any property or assets, whether or not acquired by such
Affiliate from the Company.
Section 4.03. Reports by the Company. The Company covenants:
(a) to file with the Trustee, within 15 days after the Company is
required to file the same with the SEC, copies of the annual reports and
of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may from time to time by rules
and regulations prescribe) which the Company may be required to file with
the SEC pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934, as amended; or, if the Company is not required to file
informa tion, documents or reports pursuant to either of such sections,
then to file with the Trustee and the SEC, in accordance with rules and
regulations prescribed from time to time by the SEC, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules
and regulations;
(b) to file with the Trustee and the SEC, in accordance with the TIA
or the rules and regulations
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21
prescribed from time to time by the SEC, such additional information,
certificates, documents and reports with respect to compliance by the
Company with the conditions and covenants provided for in this Indenture
as may be required from time to time by the TIA and such rules and
regulations;
(c) to transmit by mail to all Holders of Registered Securities, as
the names and addresses of such Holders appear on the register for each
Series of Securities, to such Holders of Unregistered Securities as have,
within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose, and to each Holder whose name
is then preserved on the Trustee's list pursuant to the first sen tence of
Section 2.07(a), within 30 days after the filing thereof with the Trustee,
such summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this Section
4.03 as may be required to be so transmitted by rules and regulations
prescribed from time to time by the SEC; and
(d) to deliver to the Trustee, not less often than annually, a
certificate of the principal executive officer, principal financial
officer or principal accounting officer of the Company as to such
officer's knowledge of the Company's compliance with all conditions and
covenants under this Indenture, determined without regard to any period of
grace or requirement of notice provided under this Indenture.
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. When Company May Merge, etc. The Company may consolidate
with, or merge into, or be merged into, or transfer or lease its properties and
assets substantially as an entirety to, any person provided the person is a
corporation, the person assumes by supplemental indenture all the obligations of
the Company under the Securities and any coupons appertaining thereto and under
this Indenture and, after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing. The surviving, transferee or lessee
corporation shall be the successor Company, and the predecessor Company, except
in the case of a lease, shall be relieved of all obligations under this
Indenture and the Securities and any coupons apper taining thereto.
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22
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default. An "Event of Default" occurs with respect
to the Securities of any Series if:
(1) the Company defaults in the payment of interest on any Security
of that Series when the same becomes due and payable and the Default
continues for a period of 90 days;
(2) the Company defaults in the payment of the principal of any
Security of that Series when the same becomes due and payable at maturity,
upon redemption or otherwise;
(3) the Company fails to comply with any of its other agreements in
the Securities of that Series, in this Indenture or in any supplemental
indenture under which the Securities of that Series may have been issued
and the Default continues for the period and after the notice specified
below;
(4) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(5) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case,
(B) appoints a Custodian of the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company, and the order or
decree remains unstayed and in effect
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23
for 90 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
A Default under clause (3) is not an Event of Default until the Trustee or
the Holders of at least 25% in principal amount of all the outstanding
Securities of that Series notify the Company (and the Trustee in the case of
notification by such Holders) of the Default and the Company does not cure the
Default within 90 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a "Notice of
Default".
Section 6.02. Acceleration. If an Event of Default occurs with respect to
the Securities of any Series and is continuing, the Trustee, by notice to the
Company, or the Holders of at least 25% in principal amount of all of the
outstanding Securities of that Series, by notice to the Company and to the
Trustee, may declare the principal (or, if the Securities of that Series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of that Series) of all the Securities of that Series
to be due and payable. Upon such declaration, such principal (or, in the case of
Original Issue Discount Securities, such specified amount) together with all
interest accrued thereon shall be due and payable immediately. The Holders of a
majority in principal amount of all of the Securities of that Series, by notice
to the Trustee, may rescind such a declaration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of principal or
interest that has become due solely because of the acceleration.
Section 6.03. Other Remedies Available to Trustee. (a) If an Event of
Default occurs and is continuing, the Trustee may pursue any available remedy to
collect the payment of principal or interest on the Securities of the Series
that is in default or to enforce the performance of any provision of the
Securities of that Series or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default.
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24
No remedy is exclusive of any other remedy. All available remedies are
cumulative.
Section 6.04. Waiver of Existing Defaults. The Holders of a majority in
principal amount of any Series of Securities by notice to the Trustee may waive
an existing Default with respect to that Series and its consequences except a
Default in the payment of the principal of or interest on any Security.
Section 6.05. Control by Majority. The Holders of a majority in principal
amount of the Securities of each Series affected (with each such Series voting
as a class) may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that is unduly prejudicial to the rights
of the Securityholders of all Series so affected, or that would involve the
Trustee in personal liability.
Section 6.06. Limitation on Suits by Securityholders. A Securityholder may
pursue a remedy with respect to this Indenture or the Securities of any Series
only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in principal amount of the
Securities of that Series make a written request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense to be,
or which may be, incurred by the Trustee in pursuing the remedy;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(5) during such 60 day period, the Holders of a majority in
principal amount of the Securities of that Series do not give the Trustee
a direction inconsistent with the request.
A Securityholder of any Series may not use this Indenture to prejudice the
rights of another Securityholder of that Series or any other Series or to obtain
a preference or priority over another Securityholder of that Series or any other
<PAGE>
25
Series.
Section 6.07. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Security to
receive payment of principal and interest on the Security, on or after the
respective due dates expressed in the Security, and the right of any Holder of a
coupon to receive payment of interest due as provided in such coupon, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
Section 6.08. Collection Suits by Trustee. If an Event of Default
specified in Section 6.01(l) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount of such principal and interest then in default.
Section 6.09. Trustee May File Proofs of Claim. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee and the Securityholders allowed in
any judicial proceedings relating to the Company, its creditors or its property.
Section 6.10. Priorities. If the Trustee collects any money pursuant to
this Article, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders of Securities in respect of which or for the
benefit of which such money has been collected for amounts due and unpaid
on such Securities for principal and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal and interest, respectively; and
THIRD: to the Company.
Subject to Section 2.14, the Trustee may fix a record date (with respect
to Registered Securities) and payment date for any such payment to Holders of
Securities.
Section 6.11. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by
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26
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by Holders of more than 10% in principal
amount of the Securities of any Series.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee. (a) If an Event of Default has occurred
with respect to any Security of any Series and is continuing, the Trustee shall
exercise its rights and powers under this Indenture with respect to that Series
and use the same degree of care and skill in their exercise as a prudent man
would exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default with respect to
any Security of any Series:
(1) The Trustee need perform only those duties with respect to that
Series that are specifically set forth in the Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section.
(2) The Trustee shall not be liable for any error
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27
of judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable to the Company for interest on any
money received by the Trustee from the Company hereunder except as the Trustee
may agree with the Company. Money held in trust by the Trustee need not be
segregated from other hinds except to the extent required by law.
Section 7.02. Rights of Trustee. (a) The Trustee may rely on any document
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may consult with
counsel or require an Officers' Certificate or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on a Board Resolution, a Company Order delivered pursuant to
Section 2.05, the written advice of counsel reasonably acceptable to the Company
and the Trustee, a certificate of an Officer or Officers delivered pursuant to
Section 2.02(b), an Officers' Certificate or an Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
Section 7.03. Individual Rights of Trustee. The Trustee in its individual
or any other capacity may become the owner or pledgee of Securities and may
otherwise deal with the
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28
Company or an Affiliate with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 7.10 and 7.11.
Section 7.04. Trustee's Disclaimer. The Trustee makes no representation as
to the validity or adequacy of this Indenture or the Securities. It shall not be
accountable for the Company's use of the proceeds from the Securities or for
monies paid over to the Company pursuant to the Indenture, and it shall not be
responsible for any statement in the Securities other than its certificate of
authentication.
Section 7.05. Notice of Defaults. If a Default occurs and is continuing
with respect to the Securities of any Series and if it is known to the Trustee,
the Trustee shall mail to each Holder of a Security of that Series entitled to
receive reports pursuant to Section 4.03(c) (and, if Unregistered Securities of
that Series are outstanding, shall cause to be published at least once in an
Authorized Newspaper in each of The City of New York, London and, if Securities
of that Series are listed on The Luxembourg Stock Exchange, Luxembourg) notice
of the Default within 90 days after it occurs. Except in the case of a Default
in payment on the Securities of any Series, the Trustee may withhold the notice
if and so long as its corporate trust or similar committee or a committee of its
Responsible Officers in good faith determines that withholding such notice is in
the interests of Securityholders of that Series.
Section 7.06. Reports by Trustee to Holders. (a) The Trustee shall mail to
each Securityholder of any Series entitled to receive reports pursuant to
Section 4.03(c) brief reports that comply with TIA ss. 313(a) as and when
required pursuant to TIA ss. 313(a). The Trustee also shall comply with TIA ss.
313(b).
(b) At the time that it mails such a report to Securityholders of any
Series, the Trustee shall file a copy of that report with the SEC and with each
stock exchange on which the Securities of that Series are listed. The Company
shall provide written notice to the Trustee when the Securities of any Series
are listed on any stock exchange.
Section 7.07. Compensation and Indemnity. (a) The Company shall pay to the
Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it in connection
with the performance of its duties under this Indenture. Such expenses shall
include the reasonable
<PAGE>
29
compensation and expenses of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee against any loss, liability or
expense incurred by it arising out of or in connection with its acceptance or
administration of the trust or trusts hereunder. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable fees and expenses
of such counsel. The Company need not pay for any settlement made without its
consent.
(c) The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or bad faith.
(d) To secure the payment obligations of the Company pursuant to this
Section, the Trustee shall have a lien prior to the Securities of any Series on
all money or property held or collected by the Trustee except that held in trust
to pay principal and interest on particular Securities of a Series.
(e) If the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(4) or (5) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.08. Replacement of Trustee. (a) The resignation or removal of
the Trustee and the appointment of a successor Trustee shall become effective
only upon the successor Trustee's acceptance of appointment as provided in this
Section.
(b) The Trustee may resign with respect to the Securities of any Series by
so notifying the Company. The Holders of a majority in principal amount of the
Securities of any Series may remove the Trustee with respect to that Series by
so notifying the Trustee and the Company and may appoint a successor Trustee for
such Series with the Company's consent. The Company may remove the Trustee with
respect to Securities of any Series if:
(1) the Trustee fails to comply with Section 7. 10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
<PAGE>
30
(3) a receiver or public officer takes charge of the Trustee or its
property; or (4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to Securities of any Series, the
Company shall promptly appoint a successor Trustee for such Series.
(d) If a successor Trustee with respect to the Securities of any Series
does not take office within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of 10% in principal
amount of the Securities of the applicable Series may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee with respect to the Securities of any Series fails to
comply with Section 7.10, any Securityholder of the applicable Series may
petition any court of competent jurisdiction for the removal of such Trustee and
the appointment of a successor Trustee.
(f) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee for any Series of Securities
shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the retiring Trustee with respect to all Series of
Securities for which the successor Trustee is to be acting as Trustee under this
Indenture. The retiring Trustee shall promptly transfer all property held by it
as Trustee with respect to such Series of Securities to the successor Trustee
subject to the lien provided for in Section 7.07. The Company shall give notice
of each appointment of a successor Trustee for any Series of Securities (i) by
mailing written notice of such event by first-class mail to the Holders of
Securities of such Series entitled to receive reports pursuant to Section
4.03(c) and (ii) if any Securities of such Series have been issued and are
outstanding in the form of Unregistered Securities, by publishing notice of such
event once in an Authorized Newspaper in each of The City of New York, London,
and, if Securities of such Series are listed on The Luxembourg Stock Exchange,
Luxembourg.
(g) All provisions of this Section 7.08 except subparagraphs (b) (1) and
(e) and the words "subject to the lien provided for in Section 7.07" in
subparagraph (f) shall apply also to any Paying Agent located outside the U.S.
and its possessions and required by Section 2.04.
<PAGE>
31
(h) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) Series, the Company, the
retiring Trustee and such successor Trustee shall execute and deliver a
supplemental indenture wherein such successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, such successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those Series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those Series
as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee.
Section 7.09. Successor Trustee, Agents by Merger, etc. If the Trustee or
any Agent consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business assets to, another
corporation, the successor corporation, without any further act, shall be the
successor Trustee or Agent, as the case may be.
Section 7.10. Eligibility; Disqualification. This Indenture shall always
have a Trustee with respect to each Series of Securities who satisfies the
requirements of TIA ss. 310(a)(1) and (5). The Trustee (or any affiliate thereof
which has unconditionally guaranteed the obligations of the Trustee hereunder)
shall always have a combined capital and surplus of at least $25,000,000 as set
forth in its most recent published annual report of condition. The Trustee is
subject to TIA ss. 310(b), except that there shall be excluded from the
operation of TIA ss. 310(b)(1) all indentures of the Company, and series of
securities issued thereunder, now or hereafter existing which may be excluded
under the proviso of TIA ss. 310(b)(1), and all Series of Securities issued
subsequent to the issuance of the first Series of Securities hereunder.
Section 7.11. Preferential Collection of Claims
<PAGE>
32
Against Company. The Trustee is subject to TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated.
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01. Termination of Company's Obligations. (a) The Company
reserves the right to terminate all of its obligations under the Securities and
this Indenture with respect to the Securities of any Series or with respect to
any installment of principal of or interest on that Series if the Company
irrevocably deposits in trust with the Trustee money or U.S. Government
Obligations sufficient to pay, when due, principal and interest on the
Securities of that Series to maturity or redemption or such installment of
principal or interest, as the case may be, and if all other conditions set forth
in the Securities of that Series are met. The Company shall designate the
installment or installments of principal or interest to be so satisfied.
(b) However, the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06,
2.07, 2.08, 2.09, 4.01, 7.07, 7.08, 8.03, 8.04, 10.04 and 10.05 shall survive
until the Securities are no longer outstanding. Thereafter the Company's
obligations in Sections 7.07, 8.03 and 8.04 shall survive.
(c) Before or after a deposit the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article 3.
(d) After a deposit by the Company in accordance with this Section in
respect of the Securities of a Series, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of the Series in respect of which the deposit has been made and this
Indenture with respect to the Securities of that Series except for those
surviving obligations specified above.
(e) In order to have money available on a payment date to pay principal or
interest on the Securities of any Series, the U.S. Government Obligations shall
be payable as to principal or interest on or before such payment date in such
amounts as will provide the necessary money. U.S. Government Obligations shall
not be callable at the issuer's option.
<PAGE>
33
(f) "U.S. Government Obligations" means:
(i) direct obligations of the United States of America for the
payment of which the full faith and credit of the United States of America
is pledged; or
(ii) obligations of a person controlled or supervised by and acting
as an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America.
Section 8.02. Application of Trust Money. The Trustee shall hold in trust
money or U.S. Government Obligations deposited with it pursuant to Section 8.01.
It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal and interest on the Securities of each Series in
respect of which the deposit shall have been made.
Section 8.03. Excess or Unclaimed Money. (a) The Trustee and the Paying
Agent shall promptly pay to the Company upon request any excess money or
securities held by them at any time.
(b) The Trustee and the Paying Agent shall retain the money held by them
for the payment of principal or interest that remains unclaimed until such time
as the money, or any portion thereof, is paid and delivered by the Trustee to an
appropriate state authority pursuant to the applicable abandoned property law.
Thereafter, Securityholders entitled to money which has been delivered to a
state authority as abandoned property must look to such state authority for
payment.
Section 8.04. Indemnity for Government Obligations. The Company shall pay
and shall indemnify the Trustee and each Securityholder of each Series in
respect of which the deposit shall have been made against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such obligations.
ARTICLE 9
AMENDMENTS AND WAIVERS
Section 9.01. Without Consent of Holders. The Company and the Trustee may
enter into one or more supplemental indentures without consent of any
Securityholder for any of the
<PAGE>
34
following purposes:
(1) to cure any ambiguity, defect or inconsistency herein or in the
Securities of any Series;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(4) to make any change that does not adversely affect the rights of
any Se curityholder; or
(5) to provide for the issuance of and establish the form and terms
and conditions of Securities of any Series as provided in Section 2.02, to
establish the form of any certifications required to be furnished pursuant
to the terms of this Indenture or any Series of Securities, or to add to
the rights of the Holders of any Series of Securities.
Section 9.02. With Consent of Holders. (a) With the written consent of the
Holders of a majority in principal amount of the outstanding Securities of each
Series affected by such supplemental indenture (with each Series voting as a
class), the Company and the Trustee may enter into a supplemental indenture to
add any provisions to or to change or eliminate any provisions of this Indenture
or of any supplemental indenture or to modify, in each case in any manner not
covered by Section 9.01, the rights of the Securityholders of each such Series.
The Holders of a majority in principal amount of the outstanding Securities of
each Series affected by such waiver (with each Series voting as a class), by
written notice to the Trustee, may waive compliance by the Company with any
provision of this Indenture, any supplemental indenture or the Securities of any
such Series except a Default in the payment of the principal of or interest on
any Security. However, without the consent of each Securityholder affected, an
amendment or waiver may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment or waiver;
(2) change the rate of or change the time for payment of interest on
any Security;
(3) change the principal of or change the fixed maturity of any
Security;
(4) waive a Default in the payment of the principal of or interest
on any Security;
<PAGE>
35
(5) make any Security payable in money other than that stated in the
Security; or
(6) make any change in Section 6.04, 6.07 or 9.02(a) (third
sentence).
(b) It is not necessary under this Section 9.02 for the Securityholders to
consent to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
(c) Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 9.02, the
Company shall transmit by mail a notice, setting forth in general terms the
substance of such supplemental indenture, to all Holders of Registered
Securities, as the names and addresses of such Holders appear on the register
for each Series of Securities, and to such Holders of Unregistered Securities as
are entitled to receive reports pursuant to Section 4.03(c). Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
Section 9.03. Compliance with Trust Indenture Act. Every amendment to this
Indenture or the Securities of one or more Series shall be set forth in a
supplemental indenture that complies with the Trust Indenture Act of 1939 as
then in effect.
Section 9.04. Revocation and Effect of Consents. Until an amendment or
waiver becomes effective, a consent to it by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to his Security
or portion of a Security if the Trustee receives the notice of revocation before
the date the amendment or waiver becomes effective. After an amendment or waiver
becomes effective, it shall bind every Securityholder of each Series affected by
such amendment or waiver.
Section 9.05. Notation on or Exchange of Securities. The Trustee may place
an appropriate notation about an amendment or waiver on any Security of any
Series thereafter authenticated. The Company in exchange for Securities of that
Series may issue and the Trustee shall authenticate new Securities of that
Series that reflect the amendment or waiver.
<PAGE>
36
Section 9.06. Trustee Protected. The Trustee need not sign any
supplemental indenture that is reasonably likely to affect adversely its rights.
Section 9.07. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture the Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
ARTICLE 10
MISCELLANEOUS
Section 10.01. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies, or conflicts with a provision which is required to
be included in this Indenture by TIA, the required provision shall control.
Section 10.02. Notices. (a) Any notice or communication by the Company or
the Trustee to the other is duly given if in writing and delivered in person or
mailed by first-class mail:
if to the Company to:
New Jersey Bell Telephone Company
540 Broad Street
Newark, New Jersey 07101
Attention: Controller and Treasurer
with a required copy to:
Bell Atlantic Corporation
1717 Arch Street
Philadelphia, PA 19103
Attention: Treasurer
<PAGE>
37
if to the Trustee to:
First Fidelity Bank, National Association, New Jersey
550 Broad Street
Newark, New Jersey
Attention: Corporate Trust Department
(b) The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(c) Any notice or communication to Holders of Securities entitled to
receive reports pursuant to Section 4.03(c) shall be mailed by first-class mail
to the addresses for Holders of Registered Securities shown on the register kept
by the Registrar and to addresses filed with the Trustee or preserved on the
Trustee's list pursuant to the first sentence of Section 2.07(a) for other
Holders. Failure to so mail a notice or communication or any defect in such
notice or communication shall not affect its sufficiency with respect to other
Holders of Securities of that or any other Series entitled to receive notice.
(d) If a notice or communication is mailed in the manner provided above
within the time prescribed, it is conclusively presumed to have been duly given,
whether or not the addressee receives it.
(e) If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and to each Agent at the same time.
(f) If it shall be impractical in the opinion of the Trustee or the
Company to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee shall constitute a sufficient publication
of such notice.
Section 10.03. Communication by Holders with Other Holders.
Securityholders of any Series may communicate pursuant to TIA ss. 312(b) with
other Securityholders of that Series or of all Series with respect to their
rights under this Indenture or under the Securities of that Series or of all
Series. The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA ss. 312(c).
Section 10.04. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the
<PAGE>
38
Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 10.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
Section 10.06. Rules by Trustee and Agents. The Trustee may make
reasonable rules for action by, or a meeting of, Securityholders of one or more
Series. The Paying Agent or Registrar may make reasonable rules and set
reasonable requirements for its functions.
Section 10.07. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday,
or a day on which banking institutions in the State of New Jersey are not
required to be open. If a payment date is a Legal Holiday at a place of payment,
payment may be made at such place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
Section 10.08. Governing Law. The laws of the State
<PAGE>
39
of New Jersey shall govern. this Indenture, the Securities and any coupons
appertaining thereto.
Section 10.09. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or an Affiliate. No such indenture, loan or debt agreement may be
used to interpret this Indenture.
Section 10.10. No Recourse Against Others. No director, officer, employee,
stockholder or Affiliate, as such, of the Company shall have any liability for
any obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
<PAGE>
40
Section 10.11. Execution in Counterparts. This Indenture may be executed
in any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one instrument.
NEW JERSEY BELL TELEPHONE COMPANY
By: /s/ Michael J. Losch
--------------------------------------------
Title: Treasurer and Chief Financial Officer
(SEAL)
Attest:
/s/ Margaret A. Stevenson
- ----------------------------
Assistant Secretary
FIRST FIDELITY BANK, NATIONAL
ASSOCIATION, NEW JERSEY
By: /s/ Tom Simons
--------------------------------------------
Title: Vice President
(SEAL)
Attest:
/s/ Jim Waters
- ---------------------------
Authorized Officer
<PAGE>
41
Reconciliation and tie between Indenture dated as of December 22, 1993 and the
Trust Indenture Act of 1939, as amended. This reconciliation section does not
constitute part of the Indenture.
Trust Indenture Act Indenture
of 1939, as amended, Section Section
---------------------------- -------
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) Inapplicable
(a)(4) Inapplicable
(a)(5) 7.10
(b) 7.08; 7.10
(c) Inapplicable
311(a) 7.11
(b) 7.11
(c) Inapplicable
312(a) 2.07
(b) 10.03
(c) 10.03
313(a) 7.06
(b)(1) Inapplicable
(b)(2) 7.06
(c) 7.06; 10/02
(d) 7.06
314(a) 4.03; 10.02
(b) Inapplicable
(c)(1) 10.04
(c)(2) 10.04
(c)(3) Inapplicable
(d) Inapplicable
(e) 10.05
(f) Inapplicable
315(a) 7.01(b)
(b) 7.05; 10.02
(c) 7.01(a)
(d) 7.01(c)
(e) 6.11
316(a) (last sentence) 2.11
(a)(1)(A) 6.05
(a)(1)(A) 6.04
(a)(2) Inapplicable
(b) 6.07
317(a)(1) 6.08
(a)(2) 6.09
(b) 2.06
318(a) 10.01
<PAGE>
EXHIBIT 5
Bell Atlantic Barry S. Abrams
540 Broad Street Vice President, General Counsel & Secretary
Room 2000
Newark, NJ 07101
973 649-2656 Fax 973 481-2660
E-Mail: [email protected] [Bell Atlantic Logo]
May 20, 1999
Bell Atlantic - New Jersey, Inc.
540 Broad Street
Newark, NJ 07101
Re: Registration Statement
on Form S-3 under the Securities Act of 1933
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-3 (which also
constitutes Post-Effective Amendment No. 1 to Registration Statement No.
33-49851) (the "Registration Statement") which Bell Atlantic - New Jersey, Inc.,
a New Jersey corporation (the "Company"), is filing with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, registering
one or more series of up to $300,000,000 of aggregate principal amount of debt
securities (the "Securities") of the Company, to be issued under an Indenture,
dated as of December 22, 1993, between the Company and First Union National
Bank, as successor Trustee.
I am Vice President and General Counsel of the Company. I or counsel for
Bell Atlantic Corporation, the parent of the Company, working at my direction,
have reviewed the Registration Statement, the Company's Certificate of
Incorporation and By-Laws, resolutions adopted by the Board of Directors of the
Company, and such other documents and records as deemed appropriate for the
purpose of giving this opinion.
Based upon the foregoing, it is my opinion that:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
New Jersey.
<PAGE>
Bell Atlantic - New Jersey, Inc.
Page 2
2. The execution and delivery of the Indenture have been duly
authorized by the Company by appropriate corporate action,
and assuming due authorization, execution and delivery
thereof by the Trustee, the Indenture is a valid and binding
agreement in accordance with its terms.
3. Upon issuance of the Securities, in accordance with the
terms of the resolutions relating thereto of the Board of
Directors of the Company and the Indenture, and receipt of
payment therefor, and in accordance with the terms of
legally required consents, approvals, authorizations and
other orders of the Securities and Exchange Commission and
any other regulatory authorities, the Securities will be
legally issued and binding obligations of the Company.
I hereby consent to the filing of this opinion with the
Securities and Exchange Commission in connection with the Registration Statement
and to being named under the heading "Legal Opinions" in the Registration
Statement.
Very truly yours,
/s/ Barry S. Abrams
Attachment
EXHIBIT 12
Bell Atlantic - New Jersey, Inc.
Computation of Ratio of Earnings to Fixed Charges
(Dollars in Millions)
<TABLE>
<CAPTION>
Years Ended December 31,
Three Months Ended ---------------------------------------------------------
March 31, 1999 1998 1997 1996 1995 1994
-------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Income before provision for income taxes,
extraordinary items, and cumulative effect of
change in accounting principle $264.7 $ 904.9 $ 837.4 $ 746.3 $ 757.0 $ 675.8
Interest expense 26.7 105.2 103.8 95.6 87.6 100.0
Portion of rent expense representing interest 3.9 15.9 15.1 12.7 12.8 12.4
Amortization of capitalized interest 1.0 3.5 3.0 2.2 1.2 0.2
------ ------------------------------------------------------------
Income, as adjusted $296.3 $1,029.5 $ 959.3 $ 856.8 $ 858.6 $ 788.4
====== ============================================================
Fixed charges:
Interest expense $ 26.7 $ 105.2 $ 103.8 $ 95.6 $ 87.6 $ 100.0
Portion of rent expense representing interest 3.9 15.9 15.1 12.7 12.8 12.4
Capitalized interest 2.0 12.0 7.6 10.6 19.7 5.1
------ ------------------------------------------------------------
Fixed Charges $ 32.6 $ 133.1 $ 126.5 $ 118.9 $ 120.1 $ 117.5
====== ============================================================
Ratio of Earnings to Fixed Charges 9.09 7.73 7.58 7.21 7.15 6.71
====== ============================================================
</TABLE>
EXHIBIT 23a
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 and Registration Statement on Form S-3 (File No. 33-49851)
of our report dated February 9, 1999 relating to the financial statements and
financial statement schedule, which appears in Bell Atlantic - New Jersey,
Inc.'s Annual Report on Form 10-K for the year ended December 31, 1998. We also
consent to the reference to us under the heading "Experts" in such Registration
Statement.
/s/ PricewaterhouseCoopers LLP
New York, New York
May 20, 1999
POWER OF ATTORNEY
WHEREAS, Bell Atlantic-New Jersey, Inc., a New Jersey corporation
(hereinafter referred to as the "Company"), proposes to file with the Securities
and Exchange Commission under the provisions of the Securities Act of 1933, as
amended, (i) a registration statement on Form S-3 with respect to the issuance
and sale of up to $300,000,000 aggregate principal amount of debt securities of
the Company and (ii) a post-effective amendment to registration statement No.
33-49851 on Form S-3 with respect to the issuance and sale of up to $50,000,000
aggregate principal amount of debt securities of the Company.
NOW, THEREFORE, the undersigned hereby appoints each of William
M. Freeman and Edwin F. Hall as attorney for the undersigned for the purpose of
executing and filing such registration statement and post-effective amendment
and any amendment or amendments thereto or other necessary documents, hereby
giving to each said attorney full authority to perform all acts necessary
thereto as fully as the undersigned could do if personally present, and hereby
ratifying all that said attorney may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney this 13th day of May, 1999.
/s/ Barry S. Abrams
-------------------
Barry S. Abrams
<PAGE>
POWER OF ATTORNEY
WHEREAS, Bell Atlantic New-Jersey, Inc., a New Jersey corporation
(hereinafter referred to as the "Company"), proposes to file with the Securities
and Exchange Commission under the provisions of the Securities Act of 1933, as
amended, (i) a registration statement on Form S-3 with respect to the issuance
and sale of up to $300,000,000 aggregate principal amount of debt securities of
the Company and (ii) a post-effective amendment to registration statement No.
33-49851 on Form S-3 with respect to the issuance and sale of up to $50,000,000
aggregate principal amount of debt securities of the Company.
NOW, THEREFORE, the undersigned hereby appoints Edwin F. Hall as
attorney for the undersigned for the purpose of executing and filing such
registration statement and post-effective amendment and any amendment or
amendments thereto or other necessary documents, hereby giving to said attorney
full authority to perform all acts necessary thereto as fully as the undersigned
could do if personally present, and hereby ratifying all that said attorney may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney this 13th day of May, 1999.
/s/ William M. Freeman
-----------------------
William M. Freeman
<PAGE>
POWER OF ATTORNEY
WHEREAS, Bell Atlantic-New Jersey, Inc., a New Jersey corporation
(hereinafter referred to as the "Company"), proposes to file with the Securities
and Exchange Commission under the provisions of the Securities Act of 1933, as
amended, (i) a registration statement on Form S-3 with respect to the issuance
and sale of up to $300,000,000 aggregate principal amount of debt securities of
the Company and (ii) a post-effective amendment to registration statement No.
33-49851 on Form S-3 with respect to the issuance and sale of up to $50,000,000
aggregate principal amount of debt securities of the Company.
NOW, THEREFORE, the undersigned hereby appoints each of William
M. Freeman and Edwin F. Hall as attorney for the undersigned for the purpose of
executing and filing such registration statement and post-effective amendment
and any amendment or amendments thereto or other necessary documents, hereby
giving to each said attorney full authority to perform all acts necessary
thereto as fully as the undersigned could do if personally present, and hereby
ratifying all that said attorney may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney this 13th day of May, 1999.
/s/ Joseph M. Milanowycz
-------------------------
Joseph M. Milanowycz
<PAGE>
POWER OF ATTORNEY
WHEREAS, Bell Atlantic New-Jersey, Inc., a New Jersey corporation
(hereinafter referred to as the "Company"), proposes to file with the Securities
and Exchange Commission under the provisions of the Securities Act of 1933, as
amended, (i) a registration statement on Form S-3 with respect to the issuance
and sale of up to $300,000,000 aggregate principal amount of debt securities of
the Company and (ii) a post-effective amendment to registration statement No.
33-49851 on Form S-3 with respect to the issuance and sale of up to $50,000,000
aggregate principal amount of debt securities of the Company.
NOW, THEREFORE, the undersigned hereby appoints William M.
Freeman as attorney for the undersigned for the purpose of executing and filing
such registration statement and post-effective amendment and any amendment or
amendments thereto or other necessary documents, hereby giving to said attorney
full authority to perform all acts necessary thereto as fully as the undersigned
could do if personally present, and hereby ratifying all that said attorney may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney this 13th day of May, 1999.
/s/ Edwin F. Hall
------------------
Edwin F. Hall
SECURITIES AND EXCHANGE COMMISION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2)
FIRST UNION NATIONAL BANK
(Exact Name of Trustee as Specified in its Charter)
22-1147033
(I.R.S. Employer Identification No.)
301 SOUTH COLLEGE STREET, CHARLOTTE, NORTH CAROLINA (Address
of Principal Executive Offices)
28288-0630
(Zip Code)
FIRST UNION NATIONAL BANK
123 SOUTH BROAD STREET
PHILADELPHIA, PA 19109
ATTENTION: CORPORATE TRUST ADMINISTRATION
(215) 985-6000
(Name, address and telephone number of Agent for Service)
BELL ATLANTIC - NEW JERSEY, INC.
(Exact Name of Obligor as Specified in its Charter)
NEW JERSEY
(State or other jurisdiction of Incorporation or Organization)
22-1151770
(I.R.S. Employer Identification No.)
540 BROAD STREET, NEWARK, NEW JERSEY
(Address of Principal Executive Offices)
07101
(Zip Code)
DEBT SECURITIES
Application relates to all securities registered pursuant
to the delayed offering registration statement
(Title of Indenture Securities)
<PAGE>
1. General information.
Furnish the following information as to the trustee:
a) Name and address of each examining or supervisory authority to which it is
subject:
Comptroller of the Currency
United States Department of the Treasury
Washington, D.C. 20219
Federal Reserve Bank
Richmond, Virginia 23219
Federal Deposit Insurance Corporation
Washington, D.C. 20429
b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
3. Voting securities of the trustee.
Furnish the following information as to each class of voting securities of
the trustee:
Not applicable - see answer to Item 13.
4. Trusteeships under other indentures.
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
Not applicable - see answer to Item 13.
5. Interlocking directorates and similar relationships with the obligor or
underwriters.
If the trustee or any of the directors or executive officers of the trustee
is a director, officer, partner, employee, appointee, or representative of the
obligor or of any underwriter for the obligor, identify each such person having
any such connection and state the nature of each such connection.
Not applicable - see answer to Item 13.
<PAGE>
6. Voting securities of the trustee owned by the obligor or its officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner, and
executive officer of the obligor:
Not applicable - see answer to Item 13.
7. Voting securities of the trustee owned by underwriters or their officials.
Furnish the following information as to the voting securities of the trustee
owned beneficially by each underwriter for the obligor and each director,
partner, and executive officer of each such underwriter:
Not applicable - see answer to Item 13.
8. Securities of the obligor owned or held by the trustee.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for obligations in default by the
trustee:
Not applicable - see answer to Item 13.
9. Securities of underwriters owned or held by the trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor, furnish
the following information as to each class of securities of such underwriter any
of which are so owned or held by the trustee:
Not applicable - see answer to Item 13.
10. Ownership or holdings by the trustee of voting securities of certain
affiliates or security holders of the obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10 percent or more of the voting stock of the obligor or
(2) is an affiliate, other than a subsidiary, of the obligor, furnish the
following information as to the voting securities of such person:
Not applicable - see answer to Item 13.
<PAGE>
11. Ownership or holdings by the trustee of any securities of a person owning 50
percent or more of the voting securities of the obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of the
trustee, owns 50 percent or more of the voting securities of the obligor,
furnish the following information as to each class of securities of such person
any of which are so owned or held by the trustee:
Not applicable - see answer to Item 13.
12. Indebtedness of the obligor to the trustee.
Except as noted in the instructions, if the obligor is indebted to the
trustee, furnish the following information:
Not applicable - see answer to Item 13.
13. Defaults by the obligor.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
None.
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been a default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
None
14. Affiliations with the underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not applicable - see answer to Item 13.
15. Foreign trustee.
Identify the order or rule pursuant to which the trustee is authorized to
act as sole trustee under indentures qualified or to be qualified under the Act.
Not applicable - trustee is a national banking association organized under
the laws of the United States.
<PAGE>
16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
___ 1. Copy of Articles of Association of the trustee as now in effect.*
___ 2. Copy of the Certificate of the Comptroller of the Currency dated March 4,
1998, evidencing the authority of the trustee to transact business.**
|X| 3. Copy of the Certification of Fiduciary Powers of the trustee by the
Office of the Comptroller of the Currency dated April 7, 1999.
|X| 4. Copy of existing by-laws of the trustee.
___ 5. Copy of each indenture referred to in Item 4, if the obligor is in
default.
-Not Applicable.
|X| 6. Consent of the trustee required by Section 321(b) of the Act.
|X| 7. Copy of report of condition of the trustee at the close of business on
March 31, 1999, published pursuant to the requirements of its supervising
authority.
___ 8. Copy of any order pursuant to which the foreign trustee is authorized to
act as sole trustee under indentures qualified or to be qualified under the Act.
- Not Applicable
___ 9. Consent to service of process required of foreign trustees pursuant to
Rule 10a-4 under the Act.
- Not Applicable
- ---------------------
*Previously filed with the Securities and Exchange Commission on
March 16, 1998 as an Exhibit to Form T-1 in connection with Registration
Statement Number 333-47985, ** and filed with the Securities and Exchange
Commission on July 15, 1998 as an Exhibit to Form T-1 in connection with
Registration Statement Number 333-59145, and incorporated herein by reference.
<PAGE>
NOTE
The trustee disclaims responsibility for the accuracy or completeness of
information contained in this Statement of Eligibility and Qualification not
known to the trustee and not obtainable by it through reasonable investigation
and as to which information it has obtained from the obligor and has had to rely
or will obtain from the principal underwriters and will have to rely.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, First Union National Bank, a national banking association organized and
existing under the laws of the United States of America, has duly caused this
Statement of Eligibility and Qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Philadelphia and
Commonwealth of Pennsylvania, on the 14th Day of May, 1999.
FIRST UNION NATIONAL BANK
By: /s/ Ralph E. Jones
------------------
Ralph E. Jones
Assistant Vice President
<PAGE>
Comptroller of the Currency
Administrator of National Banks
Washington, D.C. 20219
Certificate of Fiduciary Powers
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "First Union National Bank," Charlotte, North Carolina, (Charter No. 000001),
was granted, under the hand and seal of the Comptroller, the right to act in all
fiduciary capacities authorized under the provisions of the Act of Congress
approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the authority
so granted remains in full force and effect on the date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of office to
[Comptroller of the be affixed to these presents at the Treasury
Currency Seal] Department in the City of Washington and District
of Columbia, this 7th day of April, 1999.
/s/ John D. Hawke, Jr.
---------------------------
Comptroller of the Currency
<PAGE>
BY-LAWS OF
FIRST UNION NATIONAL BANK
Charter No. 1
Effective May 18, 1998
<PAGE>
BY-LAWS OF
FIRST UNION NATIONAL BANK
ARTICLE I
Meetings of Shareholders
Section 1.1 Annual Meeting. The annual meeting of the shareholders for
the election of directors and for the transaction of such other business as may
properly come before the meeting shall be held on the third Tuesday of April in
each year, commencing with the year 1998, except that the Board of Directors
may, from time to time and upon passage of a resolution specifically setting
forth its reasons, set such other date for such meeting during the month of
April as the Board of Directors may deem necessary or appropriate; provided,
however, that if an annual meeting would otherwise fall on a legal holiday, then
such annual meeting shall be held on the second business day following such
legal holiday. The holders of a majority of the outstanding shares entitled to
vote which are represented at any meeting of the shareholders may choose persons
to act as Chairman and as Secretary of the meeting.
Section 1.2 Special Meetings. Except as otherwise specifically provided
by statute, special meetings of the shareholders may be called for any purpose
at any time by the Board of Directors or by any three or more shareholders
owning, in the aggregate, not less than ten percent of the stock of the
Association. Every such special meeting, unless otherwise provided by law, shall
be called by mailing, postage prepaid, not less than ten days prior to the date
fixed for such meeting, to each shareholder at his address appearing on the
books of the Association, a notice stating the purpose of the meeting.
Section 1.3 Nominations for Directors. Nominations for election to the
Board of Directors may be made by the Board of Directors or by any stockholder
of any outstanding class of capital stock of the bank entitled to vote for the
election of directors. Nominations, other than those made by or on behalf of the
existing management of the bank, shall be made in writing and shall be delivered
or mailed to the President of the Bank and to the Comptroller of the Currency,
Washington, D. C., not less than 14 days nor more than 50 days prior to any
meeting of stockholders called for the election of directors, provided however,
that if less than 21 days' notice of such meeting is given to
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<PAGE>
shareholders, such nomination shall be mailed or delivered to the President of
the Bank and to the Comptroller of the Currency not later than the close of
business on the seventh day following the day on which the notice of meeting was
mailed. Such notification shall contain the following information to the extent
known to the notifying shareholder: (a) the name and address of each proposed
nominee; (b) the principal occupation of each proposed nominee; (c) the total
number of shares of capital stock of the bank that will be voted for each
proposed nominee; (d) the name and residence address of the notifying
shareholder; and (e) the number of shares of capital stock of the bank owned by
the notifying shareholder. Nominations not made in accordance herewith may, in
his discretion, be disregarded by the chairman of the meeting, and upon his
instructions, the vote tellers may disregard all votes cast for each such
nominee.
Section 1.4 Judges of Election. The Board may at any time appoint from
among the shareholders three or more persons to serve as Judges of Election at
any meeting of shareholders; to act as judges and tellers with respect to all
votes by ballot at such meeting and to file with the Secretary of the meeting a
Certificate under their hands, certifying the result thereof.
Section 1.5 Proxies. Shareholders may vote at any meeting of the
shareholders by proxies duly authorized in writing, but no officer or employee
of this Association shall act as proxy. Proxies shall be valid only for one
meeting, to be specified therein, and any adjournments of such meeting. Proxies
shall be dated and shall be filed with the records of the meeting.
Section 1.6 Quorum. A majority of the outstanding capital stock,
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders, unless otherwise provided by law; but less than a quorum may
adjourn any meeting, from time to time, and the meeting may be held, as
adjourned, without further notice. A majority of the votes cast shall decide
every question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
Directors
Section 2.1 Board of Directors. The Board of Directors (hereinafter
referred to as the "Board"), shall have power to manage and administer the
business and affairs of the Association. Except as expressly limited by law, all
corporate powers of the Association shall be vested in and may be exercised by
said Board.
3
<PAGE>
Section 2.2 Number. The Board shall consist of not less than five nor
more than twenty-five directors, the exact number within such minimum and
maximum limits to be fixed and determined from time to time by resolution of a
majority of the full Board or by resolution of the shareholders at any meeting
thereof; provided, however, that a majority of the full Board of Directors may
not increase the number of directors to a number which, (1) exceeds by more than
two the number of directors last elected by shareholders where such number was
fifteen or less, and (2) to a number which exceeds by more than four the number
of directors last elected by shareholders where such number was sixteen or more,
but in no event shall the number of directors exceed twenty-five.
Section 2.3 Organization Meeting. The Secretary of the meeting upon
receiving the certificate of the judges, of the result of any election, shall
notify the directors-elect of their election and of the time at which they are
required to meet at the Main Office of the Association for the purpose of
organizing the new Board and electing and appointing officers of the Association
for the succeeding year. Such meeting shall be held as soon thereafter as
practicable. If, at the time fixed for such meeting, there shall not be a
quorum present, the directors present may adjourn the meeting from time to
time, until a quorum is obtained.
Section 2.4 Regular Meetings. Regular meetings of the Board of Directors
shall be held at such place and time as may be designated by resolution of the
Board of Directors. Upon adoption of such resolution, no further notice of such
meeting dates or the places or times thereof shall be required. Upon the failure
of the Board of Directors to adopt such a resolution, regular meetings of the
Board of Directors shall be held, without notice, on the third Tuesday in
February, April, June, August, October and December, commencing with the year
1997, at the main office or at such other place and time as may be designated by
the Board of Directors. When any regular meeting of the Board would otherwise
fall on a holiday, the meeting shall be held on the next business day unless the
Board shall designate some other day.
Section 2.5 Special Meetings. Special meetings of the Board of Directors
may be called by the President of the Association, or at the request of three
(3) or more directors. Each member of the Board of Directors shall be given
notice stating the time and place, by telegram, letter, or in person, of each
such special meeting.
Section 2.6 Quorum. A majority of the directors shall constitute a
quorum at any meeting, except when otherwise provided by law; but a less
4
<PAGE>
number may adjourn any meeting, from time to time, and the meeting may be
held, as adjourned, without further notice.
Section 2.7 Vacancies. When any vacancy occurs among the directors, the
remaining members of the Board, In accordance with the laws of the United
States, may appoint a director to fill such vacancy at any regular meeting of
the Board, or at a special meeting called for that purpose.
Section 2.8 Advisory Boards. The Board of Directors may appoint Advisory
Boards for each of the states in which the Association conducts operations. Each
such Advisory Board shall consist of as many persons as the Board of Directors
may determine. The duties of each Advisory Board shall be to consult and advise
with the Board of Directors and senior officers of the Association in such state
with regard to the best interests of the Association and to perform such other
duties as the Board of Directors may lawfully delegate. The senior officer in
such state, or such officers as directed by such senior officer, may appoint
advisory boards for geographic regions within such state and may consult with
the State Advisory Boards prior to such appointments.
ARTICLE III
Committees of the Board
Section 3.1 The Board of Directors, by resolution adopted by a majority
of the number of directors fixed by these By-Laws, may designate two or more
directors to constitute an Executive Committee and other committees, each of
which, to the extent authorized by law and provided in such resolution, shall
have and may exercise all of the authority of the Board of Directors and the
management of the Association. The designation of any committee and the
delegation thereto of authority shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility or liability imposed
upon it or any member of the Board of Directors by law. The Board of Directors
reserves to itself alone the power to act on (1) dissolution, merger or
consolidation, or disposition of substantially all corporate property, (2)
designation of committees or filling vacancies on the Board of Directors or on a
committee of the Board (except as hereinafter provided), (3) adoption, amendment
or repeal of By-laws, (4) amendment or repeal of any resolution of the Board
which by its terms is not so amendable or repealable, and (5) declaration of
dividends, issuance of stock, or recommendations to stockholders of any action
requiring stockholder approval.
The Board of Directors or the Chairman of the Board of Directors of the
Association may change the membership of any committee at any time, fill
5
<PAGE>
vacancies therein, discharge any committee or member thereof either with or
without cause at any time, and change at any time the authority and
responsibility of any such committee.
A majority of the members of any committee of the Board of Directors may
fix such committee's rules of procedure. All action by any committee shall be
reported to the Board of Directors at a meeting succeeding such action, except
such actions as the Board may not require to be reported to it in the resolution
creating any such committee. Any action by any committee shall be subject to
revision, alteration, and approval by the Board of Directors, except to the
extent otherwise provided in the resolution creating such committee; provided,
however, that no rights or acts of third parties shall be affected by any such
revision or alteration.
ARTICLE IV
Officers and Employees
Section 4.1 Officers. The officers of the Association may be a Chairman
of the Board, a Vice Chairman of the Board, one or more Chairmen or Vice
Chairmen (who shall not be required to be directors of the Association), a
President, one or more Vice Presidents, a Secretary, a Cashier or Treasurer, and
such other officers, including officers holding similar or equivalent titles to
the above in regions, divisions or functional units of the Association, as may
be appointed by the Board of Directors. The Chairman of the Board and the
President shall be members of the Board of Directors. Any two or more offices
may be held by one person, but no officer shall sign or execute any document in
more than one capacity.
Section 4.2 Election, Term of Office, and Qualification. Each officer
shall be chosen by the Board of Directors and shall hold office until the annual
meeting of the Board of Directors held next after his election or until his
successor shall have been duly chosen and qualified, or until his death, or
until he shall resign, or shall have been disqualified, or shall have been
removed from office.
Section 4.2(a) Officers Acting as Assistant Secretary. Notwithstanding
Section 1 of these By-laws, any Senior Vice President, Vice President, or
Assistant Vice President shall have, by virtue of his office, and by authority
of the By-laws, the authority from time to time to act as an Assistant Secretary
of the Bank, and to such extent, said officers are appointed to the office of
Assistant Secretary.
6
<PAGE>
Section 4.3 Chief Executive Officer. The Board of Directors shall
designate one of its members to be the President of this Association, and the
officer so designated shall be an ex officio member of all committees of the
Association except the Examining Committee, and its Chief Executive Officer
unless some other officer is so designated by the Board of Directors.
Section 4.4 Duties of Officers. The duties of all officers shall be
prescribed by the Board of Directors. Nevertheless, the Board of Directors may
delegate to the Chief Executive Officer the authority to prescribe the duties of
other officers of the corporation not inconsistent with law, the charter, and
these By-laws, and to appoint other employees, prescribe their duties, and to
dismiss them. Notwithstanding such delegation of authority, any officer or
employee also may be dismissed at any time by the Board of Directors.
Section 4.5 Other Employees. The Board of Directors may appoint from
time to time such tellers, vault custodians, bookkeepers, and other clerks,
agents, and employees as it may deem advisable for the prompt and orderly
transaction of the business of the Association, define their duties, fix the
salary to be paid them, and dismiss them. Subject to the authority of the Board
of Directors, the Chief Executive Officer or any other officer of the
Association authorized by him, may appoint and dismiss all such tellers, vault
custodians, bookkeepers and other clerks, agents, and employees, prescribe
their duties and the conditions of their employment, and from time to time fix
their compensation.
Section 4.6 Removal and Resignation. Any officer or employee of the
Association may be removed either with or without cause by the Board of
Directors. Any employee other than an officer elected by the Board of Directors
may be dismissed in accordance with the provisions of the preceding Section 4.5.
Any officer may resign at any time by giving written notice to the Board of
Directors or to the Chief Executive Officer of the Association. Any such
resignation shall become effective upon its being accepted by the Board of
Directors, or the Chief Executive Officer.
ARTICLE V
Fiduciary Powers
Section 5.1 Capital Management Group. There shall be an area of this
Association known as the Capital Management Group which shall be responsible for
the exercise of the fiduciary powers of this Association. The Capital Management
Group shall consist of four service areas: Fiduciary Services, Retail Services,
Investments and Marketing. The Fiduciary Services unit shall consist of
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<PAGE>
personal trust, employee benefits, corporate trust and operations. The General
Office for the Fiduciary Services unit shall be located in Charlotte, N.C.,
with City Trust Offices located in such cities within the State of North
Carolina as designated by the Board of Directors.
Section 5.2 Trust Officers. There shall be a General Trust Officer of
this Association whose duties shall be to manage, supervise and direct all the
activities of the Capital Management Group. Further, there shall be one or more
Senior Trust Officers designated to assist the General Trust Officer in the
performance of his duties. They shall do or cause to be done all things
necessary or proper in carrying out the business of the Capital Management Group
in accordance with provisions of applicable law and regulation.
Section 5.3 Capital Management/General Trust Committee. There shall be a
Capital Management/General Trust Committee composed of not less than four (4)
members of the Board of Directors or officers of this Association who shall be
appointed annually or from time to time by the Board of Directors of the
Association. The General Trust Officer shall serve as an ex-officio member of
the Committee. Each member shall serve until his successor is appointed. The
Board of Directors or the Chairman of the Board may change the membership of the
Capital Management/General Trust Committee at any time, fill vacancies therein,
or discharge any member thereof with or without cause at any time. The Committee
shall counsel and advise on all matters relating to the business or affairs of
the Capital Management Group and shall adopt overall policies for the conduct of
the business of the Capital Management Group including but not limited to:
general administration, investment policies, new business development, and
review for approval of major assignments of functional responsibilities. The
Committee shall meet at least quarterly or as called for by its Chairman or any
three (3) members of the Committee. A quorum shall consist of three (3) members.
In carrying out its responsibilities, the Capital Management/General Trust
Committee shall review the actions of all officers, employees and committees
utilized by this Association in connection with the activities of the Capital
Management Group and may assign the administration and performance of any
fiduciary powers or duties to any of such officers or employees or to the
Investment Policy Committee, Personal Trust Administration Committee, Account
Review Committee, Corporate and Institutional Accounts Committee, or any other
committees it shall designate. One of the methods to be used in the review
process will be the thorough scrutiny of the Report of Examination by the Office
of the Comptroller of the Currency and the reports of the Audit Division of
First Union Corporation, as they relate to the activities of the Capital
Management Group. These reviews shall be in addition to reviews of such reports
by the Audit Committee of the Board of Directors. The Chairman of the Capital
Management/ General Trust
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<PAGE>
Committee shall be appointed by the Chairman of the Board of Directors. He shall
cause to be recorded in appropriate minutes all actions taken by the Committee.
The minutes shall be signed by its Secretary and approved by its Chairman.
Further, the Committee shall summarize all actions taken by it and shall submit
a report of its proceedings to the Board of Directors at its next regularly
scheduled meeting following a meeting of the Capital Management/General Trust
Committee. As required by Section 9.7 of Regulation 9 of the Comptroller of the
Currency, the Board of Directors retains responsibility for the proper exercise
of the fiduciary powers of this Association.
The Fiduciary Services unit of the Capital Management Group will
maintain a list of securities approved for investment in fiduciary accounts and
will from time to time provide the Capital Management/General Trust Committee
with current information relative to such list and also with respect to
transactions in other securities not on such list. It is the policy of this
Association that members of the Capital Management/General Trust Committee
should not buy, sell or trade in securities which are on such approved list or
in any other securities in which the Fiduciary Services unit has taken, or
intends to take, a position in fiduciary accounts in any circumstances in which
any such transaction could be viewed as a possible conflict of interest or could
constitute a violation of applicable law or regulation. Accordingly, if any such
securities are owned by any member of the Capital Management/General Trust
Committee at the time of appointment to such Committee, the Capital Management
Group shall be promptly so informed in writing. If any member of the Capital
Management/General Trust Committee intends to buy, sell, or trade in any such
securities while serving as a member of the Committee, he should first notify
the Capital Management Group in order to make certain that any proposed
transaction will not constitute a violation of this policy or of applicable law
or regulation.
Section 5.4 Investment Policy Committee. There shall be an Investment
Policy Committee composed of not less than seven (7) officers and/or employees
of this Association who shall be appointed annually or from time to time by the
Board of Directors. Each member shall serve until his successor is appointed.
Meetings shall be called by the Chairman or any two (2) members of the
Committee. A quorum shall consist of five (5) members. The Investment Policy
Committee shall exercise such fiduciary powers and perform such duties as may be
assigned to it by the Capital Management/General Trust Committee. All actions
taken by the Investment Policy Committee shall be recorded in appropriate
minutes, signed by the Secretary thereof, approved by its Chairman and submitted
to the Capital Management/General Trust Committee at its next ensuing regular
meeting for its review and approval.
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Section 5.5 Personal Trust Administration Committee. There shall be a
Personal Trust Administration Committee composed of not less than five (5)
officers, who shall be appointed annually or from time to time by the Board of
Directors. Each member shall serve until his successor is appointed. Meetings
shall be called by the Chairman or any three (3) members of the Committee. A
quorum shall consist of three (3) members. The Personal Trust Administration
Committee shall exercise such fiduciary powers and perform such duties as may be
assigned to it by the Capital Management/General Trust Committee. All action
taken by the Personal Trust Administration Committee shall be recorded in
appropriate minutes signed by the Secretary thereof, approved by its Chairman,
and submitted to the Capital Management/General Trust Committee at its next
ensuing regular meeting for its review and approval.
Section 5.6 Account Review Committee. There shall be an Account Review
Committee composed of not less than four (4) officers and/or employees of this
Association, who shall be appointed annually or from time to time by the Board
of Directors. Each member shall serve until his successor is appointed. Meetings
shall be called by the Chairman or any two (2) members of the Committee. A
quorum shall consist of three (3) members. The Account Review Committee shall
exercise such fiduciary powers and perform such duties as may be assigned to it
by the Capital Management/General Trust Committee. All actions taken by the
Account Review Committee shall be recorded in appropriate minutes, signed by the
Secretary thereof, approved by its Chairman and submitted to the Capital
Management/ General Trust Committee at its next ensuing regular meeting for its
review and approval.
Section 5.7 Corporate and Institutional Accounts Committee. There shall
be a Corporate and Institutional Accounts Committee composed of not less than
five (5) officers and/or employees of this Association, who shall be appointed
annually, or from time to time, by the Capital Management/General Trust
Committee and approved by the Board of Directors. Meetings may be called by the
Chairman or any two (2) members of the Committee. A quorum shall consist of
three (3) members. The Corporate and Institutional Accounts Committee shall
exercise such fiduciary powers and duties as may be assigned to it by the
General Trust Committee. All actions taken by the Corporate and Institutional
Accounts Committee shall be recorded in appropriate minutes, signed by the
Secretary thereof, approved by its Chairman and made available to the General
Trust Committee at its next ensuing regular meeting for its review and approval.
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ARTICLE VI
Stock and Stock Certificates
Section 6.1 Transfers. Shares of stock shall be transferable on the
books of the Association, and a transfer book shall be kept in which all
transfers of stock shall be recorded. Every person becoming a shareholder by
such transfer shall, in proportion to his shares, succeed to all rights and
liabilities of the prior holder of such shares.
Section 6.2 Stock Certificates. Certificates of stock shall bear the
signature of the Chairman, the Vice Chairman, the President, or a Vice President
(which may be engraved, printed, or impressed), and shall be signed manually or
by facsimile process by the Secretary, Assistant Secretary, Cashier, Assistant
Cashier, or any other officer appointed by the Board of Directors for that
purpose, to be known as an Authorized Officer, and the seal of the Association
shall be engraved thereon. Each certificate shall recite on its face that the
stock represented thereby is transferable only upon the books of the Association
properly endorsed.
ARTICLE VII
Corporate Seal
Section 7.1. The President, the Cashier, the Secretary, or any
Assistant Cashier, or Assistant Secretary, or other officer thereunto designated
by the Board of Directors shall have authority to affix the corporate seal to
any document requiring such seal, and to attest the same. Such seal shall be
substantially in the following form.
ARTICLE VIII
Miscellaneous Provisions
Section 8.1 Fiscal Year. The fiscal year of the Association shall be the
calendar year.
Section 8.2 Execution of Instruments. All agreements, indentures,
mortgages, deeds, conveyances, transfers, certificates, declarations, receipts,
discharges, releases, satisfactions, settlements, petitions, notices,
applications, schedules, accounts, affidavits, bonds, undertakings, proxies, and
other
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instruments or documents may be signed, executed, acknowledged, verified,
delivered or accepted in behalf of the Association by the Chairman of the Board,
the Vice Chairman of the Board, any Chairman or Vice Chairman, the President,
any Vice President or Assistant Vice President, the Secretary or any Assistant
Secretary, the Cashier or Treasurer or any Assistant Cashier or Assistant
Treasurer, or any officer holding similar or equivalent titles to the above in
any regions, divisions or functional units of the Association, or, if in
connection with the exercise of fiduciary powers of the Association, by any of
said officers or by any Trust Officer or Assistant Trust Officer (or equivalent
titles); provided, however, that where required, any such instrument shall be
attested by one of said officers other than the officer executing such
instrument. Any such instruments may also be executed, acknowledged, verified,
delivered or accepted in behalf of the Association in such other manner and by
such other officers as the Board of Directors may from time to time direct. The
provisions of this Section 8.2 are supplementary to any other provision of these
By-laws.
Section 13.3 Records. The Articles of Association, the By-laws, and
the proceedings of all meetings of the shareholders, the Board of Directors,
standing committees of the Board, shall be recorded in appropriate minute books
provided for the purpose. The minutes of each meeting shall be signed by the
Secretary, Cashier, or other officer appointed to act as Secretary of the
meeting.
ARTICLE IX
By-law
Section 9.1 Inspection. A copy of the By-laws, with all amendments
thereto, shall at all times be kept in a convenient place at the Head Office of
the Association, and shall be open for inspection to all shareholders, during
banking hours.
Section 9.2 Amendments. The By-laws may be amended, altered or repealed,
at any regular or special meeting of the Board of Directors, by a vote of a
majority of the whole number of Directors.
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Exhibit A
First Union National Bank
Article X
Emergency By-laws
In the event of an emergency declared by the President of the United
States or the person performing his functions, the officers and employees of
this Association will continue to conduct the affairs of the Association under
such guidance from the directors or the Executive Committee as may be available
except as to matters which by statute require specific approval of the Board of
Directors and subject to conformance with any applicable governmental directives
during the emergency.
OFFICERS PRO TEMPORE AND DISASTER
Section 1. The surviving members of the Board of Directors or the
Executive Committee shall have the power, in the absence or disability of any
officer, or upon the refusal of any officer to act, to delegate and prescribe
such officer's powers and duties to any other officer, or to any director, for
the time being.
Section 2. In the event of a state of disaster of sufficient severity
to prevent the conduct and management of the affairs and business of this
Association by its directors and officers as contemplated by these By-laws, any
two or more available members of the then Incumbent Executive Committee shall
constitute a quorum of that Committee for the full conduct and management of the
affairs and business of the Association in accordance with the provisions of
Article II of these By-laws; and in addition, such Committee shall be empowered
to exercise all of the powers reserved to the General Trust Committee under
Section 5.3 of Article V hereof. In the event of the unavailability, at such
time, of a minimum of two members of the then incumbent Executive Committee,
any three available directors shall constitute the Executive Committee for the
full conduct and management of the affairs and business of the Association in
accordance with the foregoing provisions of this section. This By-law shall be
subject to implementation by resolutions of the Board of Directors passed from
time to time for that purpose, and any provisions of these By-laws (other than
this section) and any resolutions which are contrary to the provisions of this
section or to the provisions of any such implementary
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resolutions shall be suspended until it shall be determined by an interim
Executive Committee acting under this section that it shall be to the advantage
of this Association to resume the conduct and management of its affairs and
business under all of the other provisions of these By-laws.
Officer Succession
BE IT RESOLVED, that if consequent upon war or warlike damage or
disaster, the Chief Executive Officer of this Association cannot be located by
the then acting Head Officer or is unable to assume or to continue normal
executive duties, then the authority and duties of the Chief Executive officer
shall, without further action of the Board of Directors, be automatically
assumed by one of the following persons in the order designated:
Chairman
President
Division Head/Area Administrator - Within this officer class, officers
shall take seniority on the basis of length of service in such office or, in the
event of equality, length of service as an officer of the Association.
Any one of the above persons who in accordance with this resolution
assumes the authority and duties of the Chief Executive Officer shall continue
to serve until he resigns or until five-sixths of the other officers who are
attached to the then acting Head Office decide in writing he is unable to
perform said duties or until the elected Chief Executive officer of this
Association, or a person higher on the above list, shall become available to
perform the duties of Chief Executive Officer of the Association.
BE IT FURTHER RESOLVED, that anyone dealing with this Association
may accept a certification by any three officers that a specified individual is
acting as Chief Executive Officer in accordance with this resolution; and that
anyone accepting such certification may continue to consider it in force until
notified in writing of a change, said notice of change to carry the signatures
of three officers of the Association.
Alternate Locations
The offices of the Association at which its business shall be conducted
shall be the main office thereof in each city which is designated as a City
Office (and branches, if any), and any other legally authorized location which
may be leased or acquired by this Association to carry on its business. During
an emergency resulting in any authorized place of business of this Association
being unable to function, the business ordinarily conducted at such location
shall be relocated
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elsewhere in suitable quarters, in addition to or in lieu of the locations
heretofore mentioned, as may be designated by the Board of Directors or by the
Executive Committee or by such persons as are then, in accordance with
resolutions adopted from time to time by the Board of Directors dealing with the
exercise of authority in the time of such emergency, conducting the affairs of
this Association. Any temporarily relocated place of business of this
Association shall be returned to its legally authorized location as soon as
practicable and such temporary place of business shall then be discontinued.
Acting Head Offices
BE IT RESOLVED, that in case of and provided because of war or warlike
damage or disaster, the General Office of this Association, located in
Charlotte, North Carolina, is unable temporarily to continue its functions, the
Raleigh office, located in Raleigh, North Carolina, shall automatically and
without further action of this Board of Directors, become the "Acting Head
Office of this Association";
BE IT FURTHER RESOLVED, that if by reason of said war or warlike damage
or disaster, both the General Office of this Association and the said Raleigh
Office of this Association are unable to carry on their functions, then and in
such case, the Asheville Office of this Association, located in Asheville, North
Carolina, shall, without further action of this Board of Directors, become the
"Acting Head Office of this Association"; and if neither the Raleigh Office nor
the Asheville Office can carry on their functions, then the Greensboro Office of
this Association, located in Greensboro, North Carolina, shall, without further
action of this Board of Directors, become the "Acting Head Office of this
Association"; and if neither the Raleigh Office, the Asheville Office, nor the
Greensboro Office can carry on their functions, then the Lumberton Office of
this Association, located in Lumberton, North Carolina, shall, without further
action of this Board of Directors, become the "Acting Head Office of this
Association". The Head Office shall resume its functions at its legally
authorized location as soon as practicable.
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EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of
1939, and in connection with the proposed issue of Bell Atlantic - New Jersey,
Inc. Debt Securities, First Union National Bank, hereby consents that reports of
examinations by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
FIRST UNION NATIONAL BANK
By: /s/ Ralph E. Jones
------------------------
Ralph E. Jones
Assistant Vice President
Philadelphia, Pennsylvania
May 14, 1999
<PAGE>
REPORT OF CONDITION EXHIBIT 7
Consolidating domestic and foreign subsidiaries of the First Union National
Bank, Charlotte, North Carolina, at the close of business on March 31 1999
published in response to call made by Comptroller of the Currency, under title
12, United States Code, Section 161. Charter Number 22693 Comptroller of the
Currency.
Statement of Resources and Liabilities
ASSETS
Thousand of Dollars
-------------------
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin...............11,400,000
Interest-bearing balances........................................ 454,000
Securities......................................................... /////////
Hold-to-maturity securities...................................... 1,873,000
Available-for-sale securities....................................38,611,000
Federal funds sold and securities purchases to resell.............. 3,359,000
Loans and lease financing receivables:
Loan and leases, net of unearned income.....131,165,000
LESS: Allowance for loan and lease losses.....1,812,000
LESS: Allocated transfer risk reserve.................0
Loans and leases, net of unearned income, allowance, and
reserve................................................. 129,353,000
Assets held in trading accounts......................... 4,725,000
Premises and fixed assets (including capitalized leases).. 3,218,000
Other real estate owned................................... 126,000
Investment in unconsolidated subsidiaries and associated //////////
companies................................................. 321,000
Customer's liability to this bank on acceptances outstanding. 769,000
Intangible assets................................................. 5,285,000
Other assets...................................................... 9,176,000
Total assets......................................................208,670,000
LIABILITIES
Deposits:
In domestic offices..........................................128,512,000
Noninterest-bearing.....................21,581,000
Interest-bearing.......................106,931,000
In foreign offices, Edge and Agreement subsidiaries,
and IBFs.................................................... 9,452,000
Noninterest-bearing........................553,000
Interest-bearing.........................8,899,000
Federal funds purchased and securities sold under agreements
to repurchase ................................................. 19,561,000
Demand notes issued to the U.S. Treasury......................... 500,000
Trading liabilities.............................................. 3,585,000
Other borrowed money:............................................ /////////
With original maturity of one year or less.................. 12,891,000
With original maturity of more than one year thru 3 yrs. ... 3,583,000
With a maturity of more than three years.................... 774,000
Not applicable .................................................. ////////
Bank's liability on acceptances executed and outstanding......... 769,000
Subordinated notes and debentures................................ 4,045,000
Other liabilities................................................ 7,306,000
Total liabilities................................................ 190,978,000
Not applicable................................................... ///////////
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EQUITY CAPITAL
Perpetual preferred stock and related surplus.................... 161,000
Common Stock..................................................... 455,000
Surplus.......................................................... 13,291,000
Undivided profits and capital reserves........................... 3,768,000
Net unrealized holding gains (losses) on available-for-sale /////////
securities...................................................... 22,000
Cumulative foreign currency translation adjustments.............. (5,000)
Total equity capital............................................. 17,692,000
Total liabilities and equty capital.............................. 208,670,000
