SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 15, 1994
NEW YORK TELEPHONE COMPANY
A New York Commission File I.R.S. Employer Identification
Corporation Number 1-3435 No. 13-5275510
1095 Avenue of the Americas, New York, New York 10036
Telephone number (212) 395-2121
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Form 8-K New York Telephone Company
February 15, 1994
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits:
The exhibits listed in the accompanying Index to Exhibits relate
to the registration statements (Nos. 33-49697 and 33-50615, which
also constitutes Post-Effective Amendment No. 1 to registration
statement No. 33-49697) on Form S-3 of the Company and are filed
herewith for incorporation by reference in such registration
statements.
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Form 8-K New York Telephone Company
February 15, 1994
Index to Exhibits
Exhibit Number
Per Item 601
of Regulation S-K Description of Document
1 Underwriting Agreement, dated February 15, 1994,
between the Company and Morgan Stanley & Co.
Incorporated, CS First Boston Corporation, Kidder,
Peabody & Co. Incorporated, Lehman Brothers Inc.
and Salomon Brothers Inc.
4-a Certificate, dated as of February 15, 1994,
pursuant to Section 2.02(b) of the Indenture
dated as of June 1, 1993 between the Company and
The Chase Manhattan Bank, N.A.
4-b Form of the Company's Thirty Year 7 1/4%
Debentures, due February 15, 2024 (contained in
Exhibit 4-a).
12 Computation of Ratio of Earnings to Fixed Charges.
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Form 8-K New York Telephone Company
February 15, 1994
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
New York Telephone Company
By Mel Meskin
Mel Meskin
Vice President-Finance and Treasurer
February 18, 1994
[Conformed Copy]
NEW YORK TELEPHONE COMPANY
DEBT SECURITIES
UNDERWRITING AGREEMENT
New York, New York
February 15, 1994
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
New York Telephone Company, a New York corporation ("Company"), may issue
and sell from time to time series of its debt securities registered under the
registration statements referred to in Paragraph 1(a) hereof ("Securities"
and individually "Security"). The Company proposes to sell to the
underwriters named in Schedule II hereto ("Underwriters") for whom you are
acting as representatives ("Representative"), a series of Securities, of the
designation, with the terms and in the aggregate principal amount specified
in Schedule I hereto ("Underwritten Securities" and individually
"Underwritten Security"). If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representative" shall each be deemed to refer to such
firm or firms.
1. The Company represents, warrants and agrees that:
(a) Registration statements on Form S-3 with respect to the Securities
have been prepared by the Company in conformity with the requirements of
the Securities Act of 1933, as amended ("Act"), and the rules and
regulations ("Rules and Regulations") of the Securities and Exchange
Commission ("Commission") thereunder and has become effective. As used in
this Agreement, (i) "Registration Statement" means that such registration
statement, as amended and supplemented to the date hereof;
(ii) "Preliminary Prospectus" means each prospectus (including all
documents incorporated therein by reference) included in the Registration
Statement, or amendments or supplements thereof, before it became effective
under the Act, including any prospectus filed with the Commission pursuant
to Rule 424(a) of the Rules and Regulations; (iii) "Basic Prospectus" means
the prospectus (including all documents incorporated therein by reference)
included in the Registration Statement; and (iv) "Prospectus" means the
Basic Prospectus, together with any prospectus amendment or supplement
(including in each case all documents incorporated therein by reference)
specifically relating to the Underwritten Securities, as filed with the
Commission pursuant to paragraph (b) of Rule 424 of the Rules and
Regulations. The Commission has not issued any order preventing or
suspending the use of any Prospectus.
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(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 ("Exchange Act"), the Trust Indenture Act
of 1939, as amended ("Trust Indenture Act"), and the rules and regulations
of the Commission under such Acts; the indenture, including any amendments
and supplements thereto, pursuant to which the Underwritten Securities will
be issued ("Indenture") will conform with the requirements of the Trust
Indenture Act and the rules and regulations of the Commission thereunder;
and the Registration Statement and each Prospectus does 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) Neither the Company nor any of its subsidiaries (as defined in
Paragraph 14 hereof) is in violation of its corporate charter or by-laws or
in default under any agreement, indenture or instrument, the effect of
which violation or default would be material to the Company or the Company
and its subsidiaries taken as a whole; the execution, delivery and
performance of this Agreement and any Delayed Delivery Contracts (as
defined in Paragraph 3 hereof) and compliance by the Company with the
provisions of the Underwritten Securities and the Indenture will not
conflict with, result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or any of its
subsidiaries pursuant to the terms of, or constitute a default under, any
agreement, indenture or instrument, or result in a violation of the
corporate charter or by-laws of the Company or any of its subsidiaries or
any order, rule or regulation of any court or governmental agency having
jurisdiction over the Company, any of its subsidiaries or their respective
properties; and except as required by the Act, the Trust Indenture Act, the
Exchange Act and applicable state securities laws and except as set forth
in Paragraph 1(l) 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, if any, and the Indenture.
(d) Except as described in or contemplated by the Registration
Statement and each Prospectus, there has not been any material adverse
change in, or any adverse development which materially affects, the
business, properties, financial condition, results of operations or
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prospects of the Company or the Company and its subsidiaries taken as a
whole from the dates as of which information is given in the Registration
Statement and each Prospectus.
(e) Coopers & Lybrand, whose report appears in the Company's most
recent Annual Report on Form 10-K which is incorporated by reference in
each Prospectus, are independent accountants as required by the Act and the
Rules and Regulations.
(f) On the Delivery Date (as defined in Paragraph 6 hereof) (i) the
Indenture will have been validly authorized, executed and delivered by the
Company and will constitute the legally binding obligation of the Company,
(ii) the Underwritten Securities will have been validly authorized and,
upon payment therefor as provided in this Agreement, will be validly issued
and outstanding, and will constitute legally binding obligations of the
Company entitled to the benefits of the Indenture and (iii) the
Underwritten Securities and the Indenture will conform to the descriptions
thereof contained in the Prospectus.
(g) The Company and each of its consolidated subsidiaries have been
duly incorporated, are validly existing and in good standing under the laws
of their respective jurisdictions of incorporation, are duly qualified to
do business and in good standing as foreign corporations in each
jurisdiction in which their respective ownership of properties or the
conduct of their respective businesses requires such qualification, and
have power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged.
(h) Except as described in each Prospectus, there is no material
litigation or governmental proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of its consolidated
subsidiaries which might result in any material adverse change in the
financial condition, results of operations, business or prospects of the
Company or of the Company and its consolidated subsidiaries taken as a
whole or which is required to be disclosed in the Registration Statement.
(i) The financial statements filed as part of the Registration
Statement or included in any Preliminary Prospectus or 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
entities purported to be shown thereby, 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 applied on a consistent basis throughout the
periods involved.
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(j) The documents incorporated by reference into any Preliminary
Prospectus or Prospectus have been, and (in the case of any amendment or
supplement to any such document, or any material incorporated by reference
in any such document, filed with the Commission after the date as of which
this representation is being made) will be at all times during the period
specified in Paragraph 7(c) hereof, prepared by the Company in conformity
with the applicable requirements of the Act and 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.
(k) 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.
(l) The Company has filed a petition or petitions with the Public
Service Commission of the State of New York ("PSC") with respect to the
issue and sale of the Underwritten Securities. The PSC has authorized the
issue and sale thereof but upon the express condition that the Company
shall have fulfilled certain obligations, such authority being subject to
abrogation by order issued by one or more Commissioners of the PSC within
the period of time after the fulfillment of such obligations as may have
been specified by the PSC in its order granting such authorization, unless
prior to the expiration of such period the Company shall be advised by the
Director of the Office of Accounting and Finance of the PSC or his designee
that the applicable conditions have been met and that such authority is not
to be abrogated.
(m) The Company and each of its consolidated subsidiaries have good
and valid title to all or substantially all of their respective properties,
except as otherwise indicated in the Prospectus, subject only to the lien
of the Refunding Mortgage as set forth in the Prospectus.
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.
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3. Any offer to purchase Underwritten Securities by institutional
investors solicited by the Underwriters for delayed delivery shall be made
pursuant to contracts substantially in the form of Exhibit A attached hereto,
with such changes therein as the Company and the Representative may approve
("Delayed Delivery Contracts"). The Company shall have the right, in its
sole discretion, to approve or disapprove each such institutional investor.
Underwritten Securities which are subject to Delayed Delivery Contracts are
herein sometimes called "Delayed Delivery Underwritten Securities" and
Underwritten Securities which are not subject to Delayed Delivery Contracts
are herein sometimes called "Immediate Delivery Underwritten Securities".
Contemporaneously with the purchase on the Delivery Date by the
Underwriters of the Immediate Delivery Underwritten Securities pursuant to
this Agreement, the Company will pay to the Representative, for the account
of the Underwriters, the compensation specified in Schedule I hereto for
arranging the sale of Delayed Delivery Underwritten Securities. The
Underwriters shall have no responsibility with respect to the validity or
performance of any Delayed Delivery Contracts.
For the purpose 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 such
Underwriter as set forth in Schedule II hereto bears to the aggregate
principal amount of Underwritten Securities set forth there to be purchased
by all of the Underwriters (in each case as adjusted by the Representative to
avoid fractions of the minimum principal amount in which the Underwritten
Securities may be issued), except to the extent that the Representative
determines, in its discretion, that such deduction shall be otherwise than in
such proportion and so advises the Company.
4. The Company shall not be obligated to deliver any Underwritten
Securities except upon payment for all Immediate Delivery Underwritten
Securities to be purchased pursuant to this Agreement as hereinafter provided.
5. If any Underwriter defaults in the performance of its obligations
under this Agreement, the remaining non-defaulting Underwriters 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
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or Underwriters agreed but failed to purchase exceeds 9.09% of the total
principal amount of Underwritten Securities, and any remaining non-defaulting
Underwriter shall not be obligated to purchase more than 110% of the
principal amount of Underwritten Securities set forth in Schedule II hereto
to be purchased by it. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to the
Representative who so agree, shall have the right, but shall not be
obligated, to purchase, in such proportion as may be agreed upon among them,
all the Immediate Delivery Underwritten Securities. If the remaining
Underwriters or other underwriters satisfactory to the Representative do not
elect to purchase the Immediate Delivery Underwritten Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company, except that the Company will continue to be
liable for the payment of expenses as set forth in Paragraph 7(k) hereof.
Nothing contained in this Paragraph 5 shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Immediate Delivery Underwritten Securities of a defaulting or withdrawing
Underwriter, either the Representative or the Company may postpone the
Delivery Date for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary in the Registration 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 are sometimes referred to as the
"Delivery Date". On the Delivery Date the Company shall deliver the
Immediate Delivery Underwritten Securities to the Representative for the
account of each Underwriter against payment to or upon the order of the
Company of the purchase price by certified or official bank check or checks
payable in next-day funds settled through the New York Clearing House. 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 such form or forms (which forms may include bearer or
fully registered form) and in such denominations as may be set forth on
Schedule I. Immediate Delivery Underwritten Securities in registered form
Underwriter hereunder. Upon delivery, the Immediate Delivery Underwritten
Securities shall be in such form or forms (which forms may include bearer or
fully registered form) and in such denominations as may be set forth on
Schedule I. Immediate Delivery Underwritten Securities in registered form
shall be in such authorized denominations and registered in such names as the
Representative shall request in writing not less than two full business days
prior to the Delivery Date. For the purpose of expediting the checking
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and packaging of the Immediate Delivery Underwritten Securities, the Company
shall make the Immediate Delivery Underwritten Securities available for
inspection by the Representative in New York, New York or, in the case of
Immediate Delivery Underwritten Securities in bearer form, at another
location acceptable to the Representative, in either case 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) To file with the Commission, during such period following the date
hereof as, in the opinion of counsel for the Underwriters, any Prospectus
that is required by law to be delivered, any amendment or supplement to the
Registration Statement or any Prospectus that may, in the judgment of the
Company or the Representative, be required by the Act or requested by the
Commission and not disapproved by the Representative;
(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, such approval not to be
unreasonably exercised, 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, (ii) of 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
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any challenge to the accuracy or adequacy of any document incorporated by
reference in any Prospectus, (iv) of receipt by the Company of any
notification with respect to the suspension of the qualification of the
Underwritten Securities for sale in any jurisdiction or the initiation or
threat of any proceeding for that purpose and (v) of the happening of any
event which makes untrue any statement of a material fact made in 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 effective date of the Registration Statement, (ii) the effective
date of the most recent post-effective amendment to the Registration
Statement and (iii) the date of the Company's most recent Annual Report on
Form 10-K filed with the Commission prior to the date of this Agreement;
(h) So long as any of the Underwritten Securities are outstanding, to
furnish to the Representative copies of all reports and financial
statements furnished by the Company to 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;
(j) To use its best efforts to obtain the listing of the Underwritten
Securities on the securities exchange, if any, set forth on Schedule I
("Stock Exchange") on or prior to the Delivery Date and to cause such
listing to be continued so long as any amount of the Securities remains
outstanding; to furnish from time to time any and all documents,
instruments, information and undertakings that may be necessary in order to
effect such listing; and to maintain the same until none of the
Underwritten Securities is outstanding or until such time as payment of
principal of and premium, if any, and interest on all the Underwritten
Securities has been duly provided for, whichever is earlier; provided that
if the Company can no longer reasonably maintain such listing, the Company
shall use its best efforts to obtain and maintain the quotation for, or
listing of, the Underwritten Securities on such other securities exchange
or exchanges as the Company may, with the approval of the Representative,
determine;
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(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 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 Underwritten
Securities to the Underwriters and the $150,000,000 principal amount of the
Company's Ten Year 6 1/4% Notes, due February 15, 2004.
8. (a) The Company shall indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of the
Act from and against any loss, claim, damage or liability, joint or several,
and any action in respect thereof, to which that Underwriter or controlling
person may become subject, under the Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement or any Prospectus, or
arises out of, or is based upon, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and shall reimburse each Underwriter
and such controlling person for any legal and other
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expenses reasonably incurred by that Underwriter or controlling person in
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is based
upon, any untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, 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; and
provided further that as to any Preliminary Prospectus this indemnity
agreement shall not inure to the benefit of any Underwriter or any person
controlling that Underwriter on account of any loss, claim, damage, liability
or action arising from the sale of Underwritten Securities to any person by
that Underwriter if that Underwriter failed to send or give a copy of any
Prospectus, as the same may be amended or supplemented, to that person within
the time required by the Act, and the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact in such Preliminary Prospectus was corrected in such
Prospectus, unless such failure resulted from non-compliance by the Company
with Paragraph 7(b) hereof. For purposes of the second proviso to the
immediately preceding sentence, the term Prospectus shall not be deemed to
include the documents incorporated therein by reference, and no Underwriter
shall be obligated to send or give any supplement or amendment to any
document incorporated by reference in any Preliminary Prospectus or any
Prospectus to any person other than a person to whom such Underwriter has
delivered such incorporated documents in response to a written request
thereof. The foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to any Underwriter or controlling person.
(b) Each Underwriter shall indemnify and hold harmless the Company,
each of its directors, each of its officers who signed the Registration
Statement and any person who controls the Company within the meaning of the
Act from and against any loss, claim, damage or liability, joint or several,
and any action in respect thereof, to which the Company or any such director,
officer or controlling person may become subject, under the Act or otherwise,
insofar as such loss, claim, damage, liability or action, arises out of, or
is based upon, any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or
any Prospectus, or arises out of, or is based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each case
only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance and based upon written
information furnished to the Company through the Representative by or on
behalf of that Underwriter, and shall reimburse the Company for any legal and
other expenses reasonably incurred by the Company or any such director,
officer or controlling person in investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity
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agreement is in addition to any liability which any Underwriter may otherwise
have to the Company or any of its directors, officers or controlling persons.
(c) Promptly after receipt by an indemnified party under this
Paragraph 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Paragraph, notify the indemnifying party in
writing of the claim or the commencement of that action, provided that the
failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Paragraph 8. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein, and, to the
extent that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Paragraph for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided that the Representative shall
have the right to employ one counsel to represent the Representative, those
other Underwriters and their respective controlling persons who may be
subject to liability arising out of any claim in respect of which indemnity
may be sought by the Underwriters against the Company under this Paragraph 8
if, in the reasonable judgment of the Representative, it is advisable for the
Representative, those Underwriters and controlling persons to be represented
by separate counsel, and in that event the fees and expenses of such separate
counsel shall be paid by the Company. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by this
Section 8, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 60 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes
an unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
11
<PAGE>
(d) If the indemnification provided for in this Paragraph 8 shall for
any reason be unavailable to an indemnified party under Paragraph 8(a) or
8(b) hereof in respect of any loss, claim, damage or liability, or any action
in respect thereof, referred to therein, then each indemnifying party shall,
in lieu of indemnifying such indemnified party, contribute to the amount paid
or payable by such indemnified party as a result of such loss, claim, damage
or liability, or action in respect thereof, in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the
Underwritten Securities and the relative fault of the Company on the one hand
and the Underwriters on the other with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in respect
thereof, 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 with respect to such offering shall be deemed to be
in the same proportion as the total net proceeds from the offering of the
Underwritten Securities (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters with respect to such offering. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount
paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Paragraph 8(d) shall be deemed to include, for purposes of this Paragraph
8(d), any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Paragraph 8(d) 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 paid or become liable to pay
by reason of any 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. The
Underwriters' obligations to contribute as provided in this Paragraph 8(d)
are several in proportion to their respective underwriting obligations and
not joint.
(e) 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.
12
<PAGE>
9. The obligations of the Underwriters under this Agreement may be
terminated by the Representative, in its absolute discretion, by notice given
to and received by the Company prior to the delivery of and payment for the
Immediate Delivery Underwritten Securities, if, during the period beginning
on the date hereof to and including the Delivery Date, (a) trading in
securities generally on the New York Stock Exchange, Inc. is suspended, or
minimum prices are established on that Exchange, or (b) a banking moratorium
is declared by either Federal or New York State authorities, or (c) trading
of any securities of the Company shall have been suspended on any exchange or
in any over-the-counter market, or (d) there shall have occurred any outbreak
or material escalation of hostilities or other calamity or crisis the effect
of which on the financial markets of the United States is such as to make it,
in the reasonable judgment of the Underwriters, impracticable to market such
Underwritten Securities, or (e) any change, or any development involving a
prospective change, in or affecting the business or properties of the Company
and its consolidated subsidiaries taken as a whole shall have occurred the
effect of which is, in the reasonable judgment of the Underwriters, so
material and adverse as to make it impracticable or inadvisable to proceed
with the delivery of the Underwritten Securities, or (f) any rating of any of
the Company's unsecured senior debt securities shall have been lowered by any
nationally recognized statistical rating organization (as defined in Rule
15c3-1 under the Exchange Act).
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 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.
13
<PAGE>
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Underwritten
Securities and the Indenture and the form of the Registration 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 Vice President and General Counsel to the Company shall have
furnished to the Representative his opinion addressed to the Underwriters
and dated the Delivery Date, as Vice President and General Counsel to 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 York;
(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 upon the Company), 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 authorization, execution and delivery thereof 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 executed and issued by the Company, and
assuming due authentication thereof by the Trustee and upon payment
and delivery by the respective purchasers thereof in accordance with
the terms of the related Delayed Delivery Contracts, will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms and entitled to the benefits of the
Indenture;
(vi) The Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by the purchasers thereunder,
are valid and legally binding obligations of the parties thereto;
14
<PAGE>
(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 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 any
order, rule or regulation of any court or governmental agency having
jurisdiction over the Company or its property; and
(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 PSC and of any
other public boards or bodies have been obtained.
In giving such opinion, such counsel may rely on the opinion of
Connecticut counsel satisfactory to counsel for the Underwriters as to
matters of Connecticut law. In giving such opinion, such counsel need not
express any opinion regarding any order, consent or other authorization or
approval which may be legally required pursuant to any state securities law.
15
<PAGE>
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 therein) 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, as of its effective
date (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 any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary in order to make the statements therein not
misleading (except that no belief need be expressed as to the financial
statements and other financial data contained therein), or (ii) the
Prospectus contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading (except
that no belief need be expressed as to the financial statements and other
financial data contained therein).
(e) the Company shall have furnished to the Representative on the
Delivery Date a certificate, dated the Delivery Date, of its Chairman of the
Board, its President or a Vice President and its Treasurer or an Assistant
Treasurer stating that:
(i) The representations, warranties and agreements of the Company
in Paragraph 1 hereof are true and correct as of the Delivery Date;
the Company has complied with all its agreements contained herein; and
the conditions set forth in Paragraphs 10(a) and 10(h) hereof have
been fulfilled;
16
<PAGE>
(ii) They have carefully examined the Registration Statement and
each Prospectus and, in their opinion, (A) as of the date of each
Prospectus, the Registration Statement and the Prospectus did not
include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and (B) since the date of
each Prospectus, no event has occurred which should have been set
forth in a supplement or amendment of the Prospectus which has not
been set forth in such a supplement or amendment.
(f) The Company shall have furnished to the Representative (i) a
letter of Coopers & Lybrand, 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 Coopers & Lybrand, 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.
(g) Simpson Thacher & Bartlett shall have furnished 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.
(h) The PSC 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 the Company shall have been advised by the Director
of the Office of Accounting and Finance of the PSC or his designee that such
authority is not to be abrogated.
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.
17
<PAGE>
11. If the Company shall fail to tender the Immediate Delivery
Underwritten Securities for delivery to the Underwriters for any reason 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 the reasonable fees and expenses of their
counsel and for such other out-of-pocket expenses as shall have been incurred
by them in connection with this Agreement and the proposed purchase of
Immediate Delivery Underwritten Securities, and the solicitation of any
purchases of the Delayed Delivery Underwritten Securities, and upon demand
the Company shall pay the full amount thereof to the Representative. If this
Agreement is terminated pursuant to Paragraph 5 hereof by reason of the
default of one or more Underwriters, the Company shall not be obligated to
reimburse any defaulting Underwriter on account of those expenses.
12. The Company shall be entitled to act and rely upon any request,
consent, notice or agreement by, or on behalf of, the Representative. Any
notice by the Company to the Underwriters shall be sufficient if given in
writing or by telegraph addressed to the Representative at its address set
forth in Schedule I hereto, and any notice by the Underwriters to the Company
shall be sufficient if given in writing or by telegraph addressed to the
Company at 1095 Avenue of the Americas, New York, New York, 10036, Attention
of the Vice President-Finance.
13. This Agreement shall be binding upon the Underwriters, the
Company, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(a) the representations, warranties, indemnities and agreements of the
Company contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control any Underwriter within
the meaning of Section 15 of the Act, and (b) the indemnity agreement of the
Underwriters contained in Paragraph 8 hereof shall be deemed to be for the
benefit of directors of the Company, officers of the Company who have signed
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, (a) "business day" means any day
on which the New York Stock Exchange, Inc. is open for trading, and (b)
"subsidiary" has the meaning set forth in Rule 405 of the Rules and
Regulations.
15. This Agreement shall be governed by and construed in accordance
with the laws of New York.
18
<PAGE>
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,
NEW YORK TELEPHONE COMPANY
By Mel Meskin
Title: Vice President-Finance
and Treasurer
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
Morgan Stanley & Co. Incorporated
CS First Boston Corporation
Kidder, Peabody & Co. Incorporated
Lehman Brothers Inc.
Salomon Brothers Inc
By Morgan Stanley & Co. Incorporated
By Steven B. Fitzpatrick
Title: Vice President
For themselves and as Representatives of
the several Underwriters named in Schedule II
to the foregoing Agreement.
19
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I
Underwriting Agreement dated February 15, 1994.
Registration Statement Nos. 33-49697 and 33-50615.
<S> <C>
Representatives and Addresses: Morgan Stanley & Co. Incorporated
CS First Boston Corporation
Kidder, Peabody & Co. Incorporated
Lehman Brothers Inc.
Salomon Brothers Inc
C/O Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
4th Floor
New York, New York 10020
Underwritten Securities: Thirty Year 7 1/4% Debentures,
Designation: due February 15, 2024.
Principal Amount: $450,000,000.
Indenture: Indenture dated as of June 1, 1993,
from New York Telephone Company to The
Chase Manhattan Bank, N.A., as Trustee.
Date of Maturity: February 15, 2024.
Interest Rate: 7 1/4% per annum, payable February 15
and August 15 of each year, commencing
August 15, 1994, to holders of record
at the close of business on the
February 1 or August 1 prior to the
payment date.
20
<PAGE>
SCHEDULE I (continued)
Purchase Price: 97.997% of the principal amount
thereof.
Redemption Provisions: The Debentures are not redeemable
prior to February 15, 2004. On or
after February 15, 2004, the
Debentures are redeemable at the
redemption prices set forth in the
prospectus.
Form and Authorized
Denominations: Registered-$1,000 and multiples
thereof.
Stock Exchange Listing: Application will be made to list the
Debentures on the New York Stock
Exchange, Inc.
Delivery Date, Time and Location: February 28, 1994 at 10 a.m. at the
offices of NYNEX Corporation,
335 Madison Avenue, New York,
New York 10017.
</TABLE>
21
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE II
Principal
Amount of
Underwritten
Securities
Name of Underwriter
<S> <C>
Morgan Stanley & Co. Incorporated ..................... $ 90,000,000
CS First Boston Corporation ........................... 90,000,000
Kidder, Peabody & Co. Incorporated .................... 90,000,000
Lehman Brothers Inc. .................................. 90,000,000
Salomon Brothers Inc .................................. 90,000,000
Total ............................................ $450,000,000
</TABLE>
22
<PAGE>
EXHIBIT A
$
NEW YORK TELEPHONE COMPANY
DEBT SECURITIES
DELAYED DELIVERY CONTRACT
[Date]
NEW YORK TELEPHONE COMPANY
1095 Avenue of the Americas
New York, New York 10036
Dear Sirs:
The undersigned hereby agrees to purchase from New York Telephone
Company, a New York corporation ("Company"), and the Company hereby agrees to
sell to the undersigned,
$
principal amount of the Company's above-captioned securities ("Securities"),
offered by the Company's prospectus dated , 19 , as supplemented by
the prospectus supplement dated , 19 (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 , 19 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 , 19 , herein called the "Delivery
Date".
At 10:00 A.M., New York time, on the Delivery Date, the Securities to be
purchased by the undersigned hereunder will be delivered by the Company to
the undersigned, and the undersigned will accept delivery of such Securities
and will make payment to the Company of the purchase price therefor, at the
office of Marine Midland Bank, N.A. Payment will be by 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.
1
<PAGE>
This Contract will terminate and be of no further force and effect
after , 19 , unless (i) on or before such date it shall have been
executed and delivered by both parties hereto or (ii) the Company shall have
sold to the Underwriters named in the Prospectus the Immediate Delivery
Underwritten Securities (as defined in the Underwriting Agreement referred to
in the Prospectus) and the Company shall have mailed or delivered to the
undersigned at its address set forth below a notice to that effect, stating
the date of the occurrence thereof, accompanied by 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 of 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 , 19
NEW YORK TELEPHONE COMPANY
By
Title
2
<TABLE>
<CAPTION>
Certificate Pursuant to Section 2.02(b)
of the Indenture Identified Below
The undersigned, Mel Meskin, Vice President-Finance and Treasurer of
New York Telephone Company (the "Company"), acting pursuant to authorizations
contained in resolutions, copies of which are delivered herewith, duly
adopted on May 19, 1993 and September 15, 1993 by the Board of Directors of
the Company, does hereby authorize, adopt and approve the following terms for
a series (the "Series") of the Company's debt securities to be issued under
an indenture dated as of June 1, 1993 (the "Indenture"), from the Company to
The Chase Manhattan Bank, N.A., as Trustee, pursuant to the Registration
Statements on Form S-3 (Nos. 33-49697 and 33-50615, which also constitutes
Post-Effective Amendment No. 1 to Registration Statement No. 33-49697), under
the Securities Act of 1933, as amended:
<S> <C> <C>
(1) Title of Securities
of the Series: Thirty Year 7 1/4% Debentures,
due February 15, 2024
(2) Limit, if any, on
aggregate principal
amount of Securities
of the Series: $450,000,000
(3) Date or dates or manner
of determining the same
on which the principal
of Securities of the
Series is payable: February 15, 2024
(4) With respect to
interest on Securities
of the Series:
(a) The amount or
method of calcu-
lation: 7 1/4% per annum
<PAGE>
(b) The date from
which such
interest shall
accrue: February 28, 1994
(c) The dates on which
interest shall be
payable or the
manner of deter-
mining the same: February 15 and August 15
(d) Record dates for To holders of record at
interest payable the close of business on
on any interest February 1 or August 1 prior
payment date (if to the interest payment date.
Registered
Securities are to
be issued):
(5) Place or places where At the office or agency of
Securities of the the Company in the Borough
Series shall be of Manhattan, The City of
payable: New York, State of New York,
which at the date hereof is
the principal corporate trust
office of the Trustee. At its
option, Company may pay
interest by check mailed to
the holder's address as it
appears on the Debenture
register.
(6) With respect to re-
demption, in whole or
in part, of Securities
of the Series at the
option of the Company:
(a) The period or
periods within which
such redemptions may
be made: The Debentures are not
redeemable prior to
(b) The applicable February 15, 2004. On
redemption price or after February 15, 2004,
or prices: the Debentures are redeemable
at the redemption prices set
forth in the Prospectus
(c) The terms and Supplement dated February 15,
conditions of such 1994, to Prospectus dated
redemptions: October 22, 1993 of the
Company.
<PAGE>
(7) With respect to the
mandatory redemption or
purchase of Securities
of the Series:
(a) Any provision for a
sinking or analogous
fund or for redemp-
tion or purchase at
the option of a
Holder: Not Applicable
(b) The period or
periods within
which such redemp-
tions or purchases
must be made: Not Applicable
(c) The applicable
redemption or
purchase price or
prices: Not Applicable
(d) The terms and
conditions of such
redemptions or
purchases: Not Applicable
(8) Denominations in which
Securities of the Series
are issuable, if other
than $1,000 and any
integral multiples
thereof: $1,000 and multiples thereof
(9) If other than the
principal amount thereof,
the portion of the
principal amount of
Securities of the Series
payable on declaration
of acceleration: Not Applicable
(10) (a) Whether Securities
of the Series are
issuable as
Registered Securi-
ties or Unregistered
Securities (with or
without interest
coupons), or any
combination Registered Securities,
thereof: without interest coupons
<PAGE>
(b) Whether, and the terms
upon which, Unregistered
Securities of the Series
may be exchanged for
Registered Securities of
the same Series and
vice versa: Not Applicable
(11) Any provisions for payment
of additional amounts for
taxes and for redemption,
in the event the Company
must comply with reporting
requirements or must pay
additional amounts in
respect of Securities
of the Series: Not Applicable
(12) With respect to the issuance To be issued wholly in
of any Global Securities of permanent form for deposit
the Series: with The Depository Trust
Company, as Depositary
(13) Any other covenants and terms
of Securities of the Series,
including any additional
restrictive covenants not
described above and any terms
required by United States
laws or regulations: None
(14) Issue price to public of
Securities of the Series: 98.872%
(15) Underwriters' commission
or discount as a percentage
of the principal amount of
Securities of the Series to
be issued: .875%
(16) Agency fees as a percentage
of the principal amount of
Securities of the Series to
be issued: Not Applicable
(17) Attached to this
Certificate as Exhibit A
is the form of the Securities
of the Series.
</TABLE>
<PAGE>
The capitalized terms used in this Certificate (unless otherwise
defined herein) have the meanings as defined in the Indenture.
In witness whereof I have executed this Certificate on behalf of the
Company.
Mel Meskin
Mel Meskin
Vice President-Finance and Treasurer
Dated: As of February 15, 1994
<PAGE>
Form of Debenture
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NEW YORK TELEPHONE COMPANY
Year % Debentures,
due
No. $ Cusip: 650094
NEW YORK TELEPHONE COMPANY, a New York corporation (hereinafter called the
"Company"), for value received, hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of DOLLARS on ,
at the office or agency of the Company in the Borough of Manhattan, The City of
New York, State of New York, in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, and to pay interest, semiannually on
and , on said principal sum at the rate per annum specified in the
title of this Debenture, at said office or agency, in like coin or currency,
from the day of or , as the case may be, to which
interest on this Debenture has been paid preceding the date hereof (unless the
date hereof is a or a to which interest has been paid, in
which case from the date hereof, or unless the date hereof is prior to the
first payment of interest, in which case from ) until payment of
said principal sum has been made or duly provided for. Notwithstanding the
foregoing, unless this Debenture shall be authenticated at a time when there is
an existing default in the payment of interest on the Debentures, if the date
hereof is after and before the next following or is
after and before the next following , this Debenture
shall bear interest from such or ; provided, however, that
if the Company shall default in the payment of interest due on such
or , then this Debenture shall bear interest from the next preceding
date to which interest has been paid. The interest so payable on any
or will be paid to the person in whose name this Debenture shall be
registered at the close of business on the prior to such or
the prior to such , unless such or
shall be a Legal Holiday (as defined in the Indenture), in which event the next
preceding day that is not a Legal Holiday. If and to the extent the Company
shall default in the payment of the interest due on any interest payment date,
such defaulted interest shall be paid to the person in whose name this
Debenture is registered at the close of business on a record date established
for such payment by notice by or on behalf of the Company to the holders of the
Debentures mailed by first class mail not less than fifteen
<PAGE>
Form of Debenture
days prior to such record date to their last addresses as they shall appear
upon the Debenture register, such record date to be not less than five days
preceding the date of payment of such defaulted interest. The Company may pay
interest by check mailed to the holder's address as it appears on the Debenture
register.
Reference is hereby made to the further provisions of this Debenture set
forth on the reverse hereof and such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
The Debenture shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been executed by the
Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, New York Telephone Company has caused this Instrument
to be signed by its duly authorized officers and has caused its corporate seal
to be affixed hereunto.
NEW YORK TELEPHONE COMPANY,
(SEAL)
By
Title:
By
Title:
Dated:
Certificate of Authentication
This is one of the Debentures of the series designated therein described in
the within-mentioned Indenture.
AS TRUSTEE,
By
Authorized Signature
<PAGE>
Form of Debenture
NEW YORK TELEPHONE COMPANY
Year % Debentures,
due ,
This Debenture is one of the duly authorized issue of debt securities of
the Company (herein referred to as the "Securities") of the series hereinafter
specified, all issued or to be issued under and pursuant to an indenture dated
as of , (herein referred to as the "Indenture"), duly executed
and delivered by the Company to , Trustee (herein
referred to as the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders (the words "holders", "holder",
"Securityholders" or "Securityholder" meaning the registered holders or
registered holder) of the Securities.
The Securities may be issued in one or more series, which different series
may be issued in various aggregate principal amounts, may mature at different
times, may bear interest, if any, at different rates, may be subject to
different redemption provisions, if any, may be subject to different sinking
funds, if any, may be subject to additional covenants and Events of Default and
may otherwise vary as in the Indenture provided. This Debenture is one of a
series of Securities designated as the Year % Debentures,
due of the Company and such series is limited in aggregate
principal amount to $ . References herein to Debentures shall mean
the Debentures of said series.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the written consent of the holders of a majority in principal amount of
the outstanding Securities of each series affected by a supplemental indenture
(with each series voting as a class), to enter into a supplemental indenture to
add any provisions to or to change or eliminate any provisions of the Indenture
or of any supplemental indenture or to modify, in each case in any manner not
covered by provisions in the Indenture relating to amendments and waivers
without the consent of holders, 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 notice to the Trustee, may waive compliance by the Company with any
provision of the Indenture, any supplemental indenture or the Securities of any
such series except a default in the payment of the principal of or interest on
any Security. However, without the consent of each Securityholder affected, an
amendment or waiver may not: (1) reduce the amount of Securities whose holders
must consent to an amendment or waiver;
<PAGE>
Form of Debenture
(2) change the rate of or change the time for payment of interest on any
Security; (3) change the principal of or change the fixed maturity of any
Security; (4) waive a default in the payment of the principal of or interest on
any Security; (5) make any Security payable in money other than that stated in
the Security; or (6) make any change in the provisions of the Indenture
(i) with respect to the right of the holders of a majority in principal amount
of any series of Securities by notice to the Trustee to 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; (ii) with respect
to 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, 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; or (iii) contained in this
sentence.
The Debentures are issuable as registered Debentures without coupons in
denominations of $1,000 and any multiple of $1,000. The Debentures may be
redeemed, at the option of the Company, as a whole or from time to time in
part, on or after and prior to maturity, upon the notice
referred to below, all as provided in the Indenture, at the following
redemption prices (expressed in percentages of the principal amount) during the
12-month periods beginning :
.... . % .... . %
.... . % .... . %
.... . % .... . %
.... . % .... . %
.... . % .... . %
and thereafter at 100%, together in each case with accrued interest to the date
fixed for redemption. As provided in the Indenture, notice of redemption to
the holders of Debentures to be redeemed as a whole or in part shall be given
by mailing a notice of such redemption not less than thirty nor more than
ninety days prior to the date fixed for redemption to their last addresses as
they shall appear upon the register kept for that purpose.
Where Debentures are presented to the registrar with a request to register
their transfer or to exchange them for an equal principal amount of Debentures
of other authorized denominations, the registrar shall register the transfer or
make the exchange if its requirements for such transactions are met. 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.
<PAGE>
Form of Debenture
Ownership of Debentures shall be proved by the register for the Debentures
kept by the registrar. The Company, the Trustee and any agent of the Company
may treat the person in whose name a Debenture is registered as the absolute
owner thereof for all purposes.
No director, officer, employee or stockholder, as such, of the Company
shall have any liability for any obligations of the Company under this
Debenture or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each holder by accepting this
Debenture waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Debenture.
The laws of the State of New York shall govern the Indenture and this
Debenture.
<PAGE>
THE FOLLOWING ABBREVIATIONS SHALL BE CONSTRUED AS THOUGH THE WORDS SET FORTH
BELOW OPPOSITE EACH ABBREVIATION WERE WRITTEN OUT IN FULL WHERE SUCH
ABBREVIATION APPEARS:
TEN COM--as tenants in common (Name) CUST (Name) UNIF GIFT MIN ACT (state)
TEN ENT--as tenants by the entirety --(Name) as Custodian for(Name)
JT TEN --as joint tenants with Under the (State) Uniform Gifts
right of survivorship to Minors Act
and not as tenants in
common
ADDITIONAL ABBREVIATIONS MAY ALSO BE USED THOUGH NOT IN THE ABOVE LIST.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT TAXPAYER
IDENTIFYING NUMBER OF ASSIGNEE
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
the within Debenture of New York Telephone Company and all rights thereunder
and hereby irrevocably constitutes and appoints
attorney to transfer said Debenture on the books of the Company, with full
power of substitution in the premises.
Dated:
Signature
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. THE
SIGNATURE(S) SHOULD BE GUARANTEED BY A COMMERCIAL BANK OR TRUST
COMPANY, A MEMBER ORGANIZATION OF A NATIONAL STOCK EXCHANGE OR BY
SUCH OTHER ENTITY WHOSE SIGNATURE IS ON FILE WITH AND ACCEPTABLE TO
THE TRANSFER AGENT.
<TABLE>
<CAPTION>
EXHIBIT 12
NEW YORK TELEPHONE COMPANY AND SUBSIDIARY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in Millions)
Year
1993 1992 1991 1990 1989
<S> <C> <C> <C> <C> <C>
1. Earnings
a) Income before Interest Expense . . . $ 430.2 $1,219.3 $ 911.0 $1,094.9 $ 871.4
and Cumulative effect of change
in accounting principle
b) Federal Income Taxes . . . . . . . . (73.2) 338.6 154.2 257.3 92.8
c) State Income Taxes . . . . . . . . . 5.4 4.2 3.0 3.9 3.3
d) Interest Portion of Rental Expense . 26.3 38.9 37.9 39.1 34.3
Total Earnings . . . . . . . . . $ 388.7 $1,601.0 $1,106.1 $1,395.2 $1,001.8
2. Fixed Charges
a) Total Interest Expense . . . . . . . $ 348.6 $ 362.9 $ 375.1 $ 357.0 $ 374.2
b) Interest Portion of Rental Expense . 26.3 38.9 37.9 39.1 34.3
Total Fixed Charges. . . . . . . $ 374.9 $ 401.8 $ 413.0 $ 396.1 $ 408.5
Ratio (1/2) . . . . . . . . . . . . . . . . . 1.04 3.98 2.68 3.52 2.45
IT SHOULD BE NOTED THAT AMOUNTS SUBSEQUENT TO 1987 INCLUDE THE EFFECT OF ACCOUNTING FOR CAPITAL LEASES IN
CONJUNCTION WITH STATEMENT ON FINANCIAL ACCOUNTING STANDARDS NO. 13, "ACCOUNTING FOR LEASES."
</TABLE>
