SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 7, 1998
NEW YORK TELEPHONE COMPANY
(Exact Name of Registrant as Specified in Its Charter)
New York
(State or Other Jurisdiction of Incorporation)
No. 1-3435 No. 13-5275510
(Commission File Number) I.R.S. Employer Identification
1095 Avenue of the Americas New York, New York 10036
(Address of Principal Executive Offices)
(212) 395-2121
(Registrant's Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
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Item 7. Financial Statements and Exhibits.
(c) Exhibits:
The exhibits listed in the accompanying Index to Exhibits relate to
the Registration Statements (No. 333-45779) on Form S-3 of New York
Telephone Company (the "Company"), and are filed herewith for
incorporation by reference in such Registration Statements.
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Index to Exhibits
Exhibit Number
Per Item 601
of Regulation S-K Description of Document
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1-a Underwriting Agreement, dated April 7, 1998,
between the Company and Bear, Stearns & Co. Inc.
and UBS Securities LLC
1-b Underwriting Agreement, dated April 7, 1998,
between the Company and Morgan Stanley & Co.
Incorporated and First Union Capital Markets Corp.,
a Division of Wheat First Securities
4-a Certificate, dated as of April 7, 1998,
pursuant to Section 2.02(b) of the
Indenture,dated as of February 1, 1998, between
the Company and The Chase Manhattan Bank, as
Trustee
4-b Certificate, dated as of April 7, 1998,
pursuant to Section 2.02(b) of the
Indenture,dated as of February 1, 1998, between
the Company and The Chase Manhattan Bank, as
Trustee
4-c Form of the Company's Ten Year 6% Debentures,
due April 15, 2008 (contained in Exhibit 4-a).
4-d Form of the Company's Thirty Year 6.50%
Debentures, due April 15, 2028 (contained in
Exhibit 4-b).
12 Computation of Ratio of Earnings to Fixed Charges
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
NEW YORK TELEPHONE COMPANY
By /s/ Neil D. Olson
----------------------
Neil D. Olson
Assistant Treasurer
Dated: April 13, 1998
NEW YORK TELEPHONE COMPANY
DEBT SECURITIES
UNDERWRITING AGREEMENT
New York, New York
April 7, 1998
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 statement referred to in Paragraph 1(a) hereof ("Securities" and
individually "Security"). The Company proposes to sell to the underwriters named
in Schedule II hereto ("Underwriters"), for whom you are acting as
representatives ("Representative"), a series of Securities, of the designation,
with the terms and in the aggregate principal amount specified in Schedule I
hereto ("Underwritten Securities" and individually "Underwritten Security"). If
the firm or firms listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms "Underwriters" and "Representative"
shall each be deemed to refer to such firm or firms.
1. The Company represents, warrants and agrees that:
(a) A registration statement (No. 333-45779), including a
prospectus, with respect to the Securities has 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 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 suspending the effectiveness of the
Registration Statement or preventing or suspending the use of any
Prospectus,
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and no proceedings for such purposes have been instituted or are pending
or, to the knowledge of 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 contains, 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, except for
such defaults that would not result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company or the Company and its subsidiaries
taken as a whole, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"); and the execution, delivery and
performance of this Agreement, the Indenture, the Underwritten Securities,
and any Delayed Delivery Contracts (as defined in Paragraph 3 hereof) and
the consummation of the transactions contemplated herein, and in the
Prospectus (including the issuance and sale of the Underwritten Securities
and the use of the proceeds from the sale thereof as described in the
Prospectus under the caption "Use of Proceeds") have been duly authorized
by all necessary corporate action and do not and will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to, any material
agreement, indenture or instrument to which the Company or any of its
subsidiaries is a party or by which any of them is bound or to which any
of their respective properties or assets is subject, nor will such action
result in a material violation of the charter or by-laws of the Company or
any of its subsidiaries or any
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3
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(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) Coopers & Lybrand, whose report appears in the Company's most
recent Annual Report on Form 10-K which is incorporated by reference in
each Prospectus, are independent accountants as required by the Act and
the Rules and Regulations.
(f) On the Delivery Date (as defined in Paragraph 6 hereof) (i) the
Indenture will have been validly authorized, executed and delivered by the
Company and duly qualified under the Trust Indenture Act and will
constitute the legally binding obligation of the Company, (ii) the
Underwritten Securities will have been validly authorized and executed
and, upon payment therefor as provided in this Agreement, will be validly
issued and outstanding, and will constitute legally binding obligations of
the Company entitled to the benefits of the Indenture, and (iii) the
Underwritten Securities and the Indenture will conform to the descriptions
thereof contained in the Prospectus.
(g) This Agreement has been validly authorized, executed and
delivered by the Company.
(h) The Company and each of its subsidiaries have been duly
incorporated and are validly existing and 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, except
where the failure to so qualify would not have a Material Adverse Effect,
and have power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged and,
with respect to the Company, to enter into and perform its obligations
under this Agreement.
(i) There is no material action, suit or proceeding before any court
or governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the Company
or any of its subsidiaries, which is required to be disclosed in any
Prospectus (other than as disclosed therein), or which might reasonably be
expected to result in a Material Adverse Effect, or which might reasonably
be expected to materially and adversely
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4
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.
(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 and its
consolidated subsidiaries, at the dates and for the periods indicated, and
have been, and (in the case of any amendment or supplement to any such
document, or any material incorporated by reference in any such document,
filed with the Commission after the date as of which this representation
is being made) will be at all times during the period specified in
Paragraph 7(c) hereof, prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved. The supporting schedules incorporated by reference
in the Prospectus present fairly in accordance with GAAP the information
required to be stated therein. The pro forma financial statements and the
related notes thereto incorporated by reference in the Registration
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 and Rules and Regulations and
the Exchange Act and the rules and regulations of the Commission
thereunder and such documents have been, or (in the case of any amendment
or supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date
as of which this representation is being made) will be at all times during
the period specified in Paragraph 7(c) hereof, timely filed as required
thereby.
(l) There are no contracts or other documents which are required to
be filed as exhibits to the Registration 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
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5
Regulations or the rules and regulations of the Commission under the
Exchange Act as required.
(m) The Company has filed a petition or petitions with the Public
Service Commission of the State of New York ("PSC") with respect to the
issue and sale of securities, including 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 under certain circumstances 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.
(n) The Company and each of its subsidiaries has good and valid
title to all or substantially all of their respective properties, subject
only to the lien of the Refunding Mortgage as set forth 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
("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
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6
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 such Underwriter
as set forth in Schedule II hereto bears to the aggregate principal amount of
Underwritten Securities set forth there to be purchased by all of the
Underwriters (in each case as adjusted by the Representative to avoid fractions
of the minimum principal amount in which the Underwritten Securities may be
issued), except to the extent that the Representative determines, in its
discretion, that such deduction shall be otherwise than in such proportion and
so advises the Company.
4. The Company shall not be obligated to deliver any Underwritten
Securities except upon payment for all Immediate Delivery Underwritten
Securities to be purchased pursuant to this Agreement as hereinafter provided.
5. If any Underwriter defaults in the performance of its obligations under
this Agreement, the remaining non-defaulting Underwriters, if any, shall be
obligated to purchase the Immediate Delivery Underwritten Securities which the
defaulting Underwriter agreed but failed to purchase in the respective
proportions which the principal amount of Underwritten Securities set forth in
Schedule II hereto to be purchased by each remaining non-defaulting Underwriter
set forth therein bears to the aggregate principal amount of Underwritten
Securities set forth therein to be purchased by all the remaining non-defaulting
Underwriters; provided that the remaining non-defaulting Underwriters shall not
be obligated to purchase any Immediate Delivery Underwritten Securities if the
aggregate principal amount of Immediate Delivery Underwritten Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase exceeds
9.09% of the total principal amount of Underwritten Securities, and any
remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the principal amount of Underwritten Securities set forth in
Schedule II hereto to be purchased by it. If the foregoing maximums are
exceeded, the remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Representative who so agree, shall have the right, but shall
not be obligated, to purchase, in such proportion as may be agreed upon among
them, all the Immediate Delivery Underwritten Securities. If the remaining
Underwriters or other underwriters satisfactory to the Representative do not
elect to purchase the Immediate Delivery Underwritten Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company, except that the Company will continue to be liable
for the payment of expenses as set forth in Paragraph 7(k) hereof.
Nothing contained in this Paragraph 5 shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Immediate Delivery Underwritten Securities of a
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7
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 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
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8
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 will promptly prepare and file with the
Commission, subject to Paragraph (d) below, such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or any such Prospectus comply with such
requirements, and the Company will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may
reasonably request.
(d) Prior to filing with the Commission during the period referred
to in (c) above (i) any amendment or supplement to 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 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
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9
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 that became
effective prior to the date of this Agreement and (iii) the date of the
Company's most recent Annual Report on Form 10-K filed with the Commission
prior to the date of this Agreement.
(h) So long as any of the Underwritten Securities are outstanding,
to furnish to the Representative copies of all reports and financial
statements furnished by the Company to each securities exchange on which
securities issued by the Company may be listed pursuant to requirements of
or agreements with such exchange or to the Commission pursuant to the
Exchange Act or any rule or regulation of the Commission thereunder;
(i) To endeavor to qualify the Underwritten Securities for offer and
sale under the securities laws of such jurisdictions as the Representative
may reasonably request and to maintain such qualifications in effect for
as long as may be required for the distribution of the Underwritten
Securities; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject;
(j) To use its best efforts to obtain the listing of the
Underwritten Securities on the securities exchange, if any, set forth on
Schedule I ("Stock Exchange") on or prior to the Delivery Date and to
cause such listing to be continued so long as any amount of the Securities
remains outstanding; to furnish from time to time any and all documents,
instruments, information and undertakings that may be necessary in order
to effect such listing; and to maintain the same until none of the
Underwritten Securities is outstanding or until such time as payment of
principal of and premium, if any, and interest on all the Underwritten
Securities has been duly provided for, whichever is earlier; provided that
if the Company can no longer reasonably maintain such listing, the Company
shall use its best efforts to obtain and maintain the quotation for, or
listing of, the Underwritten Securities on such other securities exchange
or exchanges as the Company may, with the approval of the Representative,
determine;
(k) To pay the costs incident to the authorization, issuance, sale
and delivery of the Underwritten Securities and any taxes payable in that
connection; the costs incident to the preparation, printing and filing
under the Act of the Registration 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
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10
documents; the costs of printing this Agreement and the Delayed Delivery
Contracts, if any; the fees and disbursements of the Company's counsel,
accountants and other advisors; the fees and expenses of the Trustee,
including the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Underwritten Securities, to the
extent the Trustee or its counsel, as the case may be, requires
reimbursement thereof; the costs of any filings with the National
Association of Securities Dealers, Inc.; fees paid to rating agencies in
connection with the rating of the Securities, including the Underwritten
Securities; the fees and expenses of qualifying the Underwritten
Securities under the securities laws of the several jurisdictions as
provided in this Paragraph and of preparing and printing a Blue Sky
Memorandum (including fees of counsel to the Underwriters); 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
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11
any investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Paragraph 8(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of outside counsel chosen by the
Representative), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue 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 of more than one counsel (in addition to any local
counsel) separate
<PAGE>
12
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 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Paragraph 8 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Underwritten Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the
Underwritten Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Underwritten Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, bear to the aggregate initial offering price of the Underwritten
Securities.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties'
<PAGE>
13
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 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
<PAGE>
14
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company or the Company and its
subsidiaries taken as a whole, whether or not arising in the ordinary course of
business, the effect of which is such as to make it, in the judgment of the
Representative, impracticable to market the Underwritten Securities or to
enforce contracts for the sale of the Underwritten Securities, or (ii) if there
has occurred any material adverse change in the financial markets in the United
States, any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representative,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (iii) if trading in any securities
of the Company or Bell Atlantic Corporation has been suspended or materially
limited by the Commission, or if trading generally on the American Stock
Exchange or the New York Stock Exchange or in the Nasdaq National Market has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) if a banking moratorium has been declared by either Federal or New York
authorities.
(b) If this Agreement is terminated pursuant to this Paragraph 9, such
termination shall be without liability of any party to any other party except as
provided in Paragraph 11 hereof, and provided further that Paragraphs 1 and 8
shall survive such termination and remain in full force and effect.
10. The respective obligations of the Underwriters under the Agreement
with respect to the Underwritten Securities are subject to the accuracy, on the
date hereof and on the Delivery Date, of the representations and warranties of
the Company contained herein, to performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions
applicable to the Underwritten Securities.
(a) At or before the Delivery Date, no stop order suspending the
effectiveness of 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.
(d) 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
<PAGE>
15
is required to be stated therein or is necessary to make the statements
therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Underwritten
Securities and the Indenture and the form of the Registration 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 her 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
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), and has all power and authority
necessary to own its properties and conduct the business in which it
is engaged as described in the Prospectus;
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust
Indenture Act and, assuming due authentication, execution and
delivery by the Trustee, constitutes a valid and legally binding
instrument of the Company enforceable in accordance with its terms;
(iv) The Immediate Delivery Underwritten Securities have been
duly authorized, executed and issued by the Company and, assuming
due authentication thereof by the Trustee and upon payment and
delivery in accordance with this Agreement, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms and entitled to the benefits of the
Indenture;
(v) The Delayed Delivery Underwritten Securities, if any, have
been duly authorized and, when duly executed and issued by the
Company and, assuming due authentication thereof by the Trustee and
upon payment and delivery by the respective purchasers thereof in
accordance with the terms of the related Delayed Delivery Contracts,
will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms and entitled to
the benefits of the Indenture;
<PAGE>
16
(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 result in the creation
or imposition of any lien, charge or encumbrance upon any of the
assets of the Company pursuant to the terms of, or constitute a
default under, any agreement, indenture or instrument known to such
counsel, or result in a violation of the corporate charter or
by-laws of the Company or, to the best of such counsel's knowledge,
any order, rule or regulation of any court or governmental agency
having jurisdiction over the Company or its property;
<PAGE>
17
(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; 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.
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.
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 respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company or the Company and its subsidiaries taken as a whole, whether or
<PAGE>
18
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
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.
(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 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, if required, 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.
(j) The Underwritten Securities shall have been accepted for listing on the
Stock Exchange (if any), subject to official notice of issuance.
<PAGE>
19
(k) At the Delivery Date, the Underwritten Securities shall be rated at
least "A2" by Moody's Investor's Service Inc., "A+" by Standard & Poor's Ratings
Group, a division of McGraw-Hill, Inc., and "A" by Duff & Phelps Credit Rating
Co., and the Company shall have delivered to the Representative a letter dated
the Delivery Date, from each such rating agency, or other evidence satisfactory
to the Representative, confirming that the Underwritten Securities have such
ratings; and since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Underwritten Securities or any of the
Company's other debt securities by any such rating agency, and no such rating
agency shall have publicly announced that it has withdrawn or has put under
surveillance or review with negative implications, including putting on what is
commonly termed a "watch list," its rating of the Underwritten Securities or any
of the Company's other debt securities.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to counsel
for the Underwriters.
11. If the Company shall fail to tender the Immediate Delivery Underwritten
Securities for delivery to the Underwriters for any reason permitted under this
Agreement, or if the Underwriters shall decline to purchase the Immediate
Delivery Underwritten Securities for any reason permitted under this Agreement
(other than pursuant to Paragraph 5 hereof). the Company shall reimburse the
Underwriters for reasonable fees and expenses of their counsel and for such
other out-of-pocket expenses as shall have been incurred by them in connection
with this Agreement and the proposed purchase of Immediate Delivery Underwritten
Securities and the solicitation of any purchases of the Delayed Delivery
Underwritten Securities, and upon demand the Company shall pay the full amount
thereof to the Representative. If this Agreement is terminated pursuant to
Paragraph 5 hereof by reason of the default of one or more Underwriters, the
Company shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
12. The Company shall be entitled to act and rely upon any request,
consent, notice or agreement by, or on behalf of, the Representative. Any notice
by the Company to the Underwriters shall be sufficient if given in writing or by
telegraph addressed to the Representative at its address set forth in Schedule I
hereto, and any notice by the Underwriters to the Company shall be sufficient if
given in writing or by telegraph addressed to the Company at 1095 Avenue of the
Americas, New York, New York 10036, Attention of the Treasurer.
13. This Agreement shall be binding upon the Underwriters, the Company, and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Act, and (b) the indemnity agreement of the Underwriters contained in
Paragraph 8 hereof shall be deemed to be for the benefit of directors of the
Company, officers of the Company who have signed the Registration Statement and
any person controlling the Company. Nothing in this Agreement is intended or
shall be construed to give any person,
<PAGE>
20
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.
<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 /s/ Ellen C. Wolf
------------------------
Name: Ellen C. Wolf
Title: Treasurer
The foregoing Agreement is hereby confirmed
and accepted as of the date first above
written.
BEAR, STEARNS & CO. INC.
By /s/ Timothy A. O'Neill
------------------------------------
Name: Timothy A. O'Neill
Title: Senior Managing Director
For itself and as Representative of the other Underwriters named in Schedule II
to the foregoing Agreement.
<PAGE>
SCHEDULE I
Underwriting Agreement dated April 7, 1998.
Registration Statement No. 333-45779.
Representatives and Addresses: Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
UBS Securities LLC
299 Park Avenue
New York, New York 10171
Underwritten Securities
Designation: Ten Year 6% Debentures, due
April 15, 2008
Principal amount: $250,000,000
Indenture: Indenture dated as of February 1,
1998 from New York Telephone
Company, to The Chase Manhattan
Bank, as Trustee.
Date of Maturity: April 15, 2008.
Interest Rate: 6% per annum to April 15, 2008,
payable April 15 and October 15 of
each year, commencing October 15,
1998, to holders of record at the
close of business on April 1 or
October 1 prior to the payment date.
Purchase Price: 98.921% of the principal amount
thereof.
Redemption Provisions: Not redeemable.
Authorized Denominations: $1,000 and integral multiples
thereof.
Stock Exchange Listing: None.
Delivery Date, Time and Location: April 15, 1998 at 10:00 a.m. at the
offices of Simpson Thacher &
Bartlett, 425 Lexington Avenue, New
York, NY 10017.
<PAGE>
SCHEDULE II
Principal
Amount of
Underwritten
Securities
----------
Name of Underwriter
- -------------------
Bear, Stearns & Co. Inc.................................... $125,000,000
UBS Securities LLC......................................... $125,000,000
------------
Total $250,000,000
============
<PAGE>
EXHIBIT A
$
NEW YORK TELEPHONE COMPANY
DEBT SECURITIES
DELAYED DELIVERY CONTRACT
[DATE]
NEW YORK TELEPHONE COMPANY
1095 Avenue of 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 , 199 , as supplemented by the
prospectus supplement dated , 199 , (collectively, the "Prospectus"),
receipt of a copy of which is hereby acknowledged, at a purchase price of % of
the principal amount thereof plus accrued interest from , 199 to the Delivery
Date (as defined in the next paragraph) and on the further terms and conditions
set forth in this Contract.
Payment for and delivery of the Securities to be purchased by the
undersigned shall be made on , 199 , herein called the "Delivery Date".
At 10:00 A.M., New York time, on the Delivery Date, the Securities to be
purchased by the undersigned hereunder will be delivered by the Company to the
undersigned, and the undersigned will accept delivery of such Securities and
will make payment to the Company of the purchase price therefor, at the office
of . Payment will be certified or official bank check payable in next-day
funds settled through the New York Clearing House to or upon the order of the
Company.
This Contract will terminate and be of no further force and effect after
, 199 , unless (i) on or before such date it shall have been
executed and delivered by both parties hereto or (ii) the Company shall have
sold to the Underwriters named in the Prospectus the Immediate Delivery
Underwritten Securities (as defined in the Underwriting Agreement referred to
in the Prospectus) and the Company shall have mailed or delivered to the
undersigned at its address set forth below a notice to that effect, stating the
date of the
<PAGE>
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 , 19 .
NEW YORK TELEPHONE COMPANY
By_________________________
Title
NEW YORK TELEPHONE COMPANY
DEBT SECURITIES
UNDERWRITING AGREEMENT
New York, New York
April 7, 1998
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 statement referred to in Paragraph 1(a) hereof ("Securities" and
individually "Security"). The Company proposes to sell to the underwriters named
in Schedule II hereto ("Underwriters"), for whom you are acting as
representatives ("Representative"), a series of Securities, of the designation,
with the terms and in the aggregate principal amount specified in Schedule I
hereto ("Underwritten Securities" and individually "Underwritten Security"). If
the firm or firms listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms "Underwriters" and "Representative"
shall each be deemed to refer to such firm or firms.
1. The Company represents, warrants and agrees that:
(a) A registration statement (No. 333-45779), including a prospectus,
with respect to the Securities has 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 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 suspending the effectiveness of the Registration
Statement or preventing or suspending the use of any Prospectus,
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2
and no proceedings for such purposes have been instituted or are pending
or, to the knowledge of 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 contains, 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, except for
such defaults that would not result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company or the Company and its subsidiaries
taken as a whole, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"); and the execution, delivery and
performance of this Agreement, the Indenture, the Underwritten Securities,
and any Delayed Delivery Contracts (as defined in Paragraph 3 hereof) and
the consummation of the transactions contemplated herein, and in the
Prospectus (including the issuance and sale of the Underwritten Securities
and the use of the proceeds from the sale thereof as described in the
Prospectus under the caption "Use of Proceeds") have been duly authorized
by all necessary corporate action and do not and will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to, any material
agreement, indenture or instrument to which the Company or any of its
subsidiaries is a party or by which any of them is bound or to which any
of their respective properties or assets is subject, nor will such action
result in a material violation of the charter or by-laws of the Company or
any of its subsidiaries or any
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3
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(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) Coopers & Lybrand, whose report appears in the Company's most
recent Annual Report on Form 10-K which is incorporated by reference in
each Prospectus, are independent accountants as required by the Act and
the Rules and Regulations.
(f) On the Delivery Date (as defined in Paragraph 6 hereof) (i) the
Indenture will have been validly authorized, executed and delivered by the
Company and duly qualified under the Trust Indenture Act and will
constitute the legally binding obligation of the Company, (ii) the
Underwritten Securities will have been validly authorized and executed
and, upon payment therefor as provided in this Agreement, will be validly
issued and outstanding, and will constitute legally binding obligations of
the Company entitled to the benefits of the Indenture, and (iii) the
Underwritten Securities and the Indenture will conform to the descriptions
thereof contained in the Prospectus.
(g) This Agreement has been validly authorized, executed and
delivered by the Company.
(h) The Company and each of its subsidiaries have been duly
incorporated and are validly existing and 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, except
where the failure to so qualify would not have a Material Adverse Effect,
and have power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged and,
with respect to the Company, to enter into and perform its obligations
under this Agreement.
(i) There is no material action, suit or proceeding before any court
or governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the Company
or any of its subsidiaries, which is required to be disclosed in any
Prospectus (other than as disclosed therein), or which might reasonably be
expected to result in a Material Adverse Effect, or which might reasonably
be expected to materially and adversely
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4
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.
(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 and its
consolidated subsidiaries, at the dates and for the periods indicated, and
have been, and (in the case of any amendment or supplement to any such
document, or any material incorporated by reference in any such document,
filed with the Commission after the date as of which this representation
is being made) will be at all times during the period specified in
Paragraph 7(c) hereof, prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved. The supporting schedules incorporated by reference
in the Prospectus present fairly in accordance with GAAP the information
required to be stated therein. The pro forma financial statements and the
related notes thereto incorporated by reference in the Registration
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 and Rules and Regulations and
the Exchange Act and the rules and regulations of the Commission
thereunder and such documents have been, or (in the case of any amendment
or supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date
as of which this representation is being made) will be at all times during
the period specified in Paragraph 7(c) hereof, timely filed as required
thereby.
(l) There are no contracts or other documents which are required to be
filed as exhibits to the Registration 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
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5
Regulations or the rules and regulations of the Commission under the
Exchange Act as required.
(m) The Company has filed a petition or petitions with the Public
Service Commission of the State of New York ("PSC") with respect to the
issue and sale of securities, including 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 under certain circumstances 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.
(n) The Company and each of its subsidiaries has good and valid title
to all or substantially all of their respective properties, subject only
to the lien of the Refunding Mortgage as set forth 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
("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
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6
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 such Underwriter
as set forth in Schedule II hereto bears to the aggregate principal amount of
Underwritten Securities set forth there to be purchased by all of the
Underwriters (in each case as adjusted by the Representative to avoid fractions
of the minimum principal amount in which the Underwritten Securities may be
issued), except to the extent that the Representative determines, in its
discretion, that such deduction shall be otherwise than in such proportion and
so advises the Company.
4. The Company shall not be obligated to deliver any Underwritten
Securities except upon payment for all Immediate Delivery Underwritten
Securities to be purchased pursuant to this Agreement as hereinafter provided.
5. If any Underwriter defaults in the performance of its obligations under
this Agreement, the remaining non-defaulting Underwriters, if any, shall be
obligated to purchase the Immediate Delivery Underwritten Securities which the
defaulting Underwriter agreed but failed to purchase in the respective
proportions which the principal amount of Underwritten Securities set forth in
Schedule II hereto to be purchased by each remaining non-defaulting Underwriter
set forth therein bears to the aggregate principal amount of Underwritten
Securities set forth therein to be purchased by all the remaining non-defaulting
Underwriters; provided that the remaining non-defaulting Underwriters shall not
be obligated to purchase any Immediate Delivery Underwritten Securities if the
aggregate principal amount of Immediate Delivery Underwritten Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase exceeds
9.09% of the total principal amount of Underwritten Securities, and any
remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the principal amount of Underwritten Securities set forth in
Schedule II hereto to be purchased by it. If the foregoing maximums are
exceeded, the remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Representative who so agree, shall have the right, but shall
not be obligated, to purchase, in such proportion as may be agreed upon among
them, all the Immediate Delivery Underwritten Securities. If the remaining
Underwriters or other underwriters satisfactory to the Representative do not
elect to purchase the Immediate Delivery Underwritten Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company, except that the Company will continue to be liable
for the payment of expenses as set forth in Paragraph 7(k) hereof.
Nothing contained in this Paragraph 5 shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Immediate Delivery Underwritten Securities of a
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7
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 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
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8
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 will promptly prepare and file with the
Commission, subject to Paragraph (d) below, such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or any such Prospectus comply with such
requirements, and the Company will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may
reasonably request.
(d) Prior to filing with the Commission during the period referred to
in (c) above (i) any amendment or supplement to 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 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
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9
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 that became
effective prior to the date of this Agreement and (iii) the date of the
Company's most recent Annual Report on Form 10-K filed with the Commission
prior to the date of this Agreement.
(h) So long as any of the Underwritten Securities are outstanding, to
furnish to the Representative copies of all reports and financial
statements furnished by the Company to each securities exchange on which
securities issued by the Company may be listed pursuant to requirements of
or agreements with such exchange or to the Commission pursuant to the
Exchange Act or any rule or regulation of the Commission thereunder;
(i) To endeavor to qualify the Underwritten Securities for offer and
sale under the securities laws of such jurisdictions as the Representative
may reasonably request and to maintain such qualifications in effect for
as long as may be required for the distribution of the Underwritten
Securities; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject;
(j) To use its best efforts to obtain the listing of the Underwritten
Securities on the securities exchange, if any, set forth on Schedule I
("Stock Exchange") on or prior to the Delivery Date and to cause such
listing to be continued so long as any amount of the Securities remains
outstanding; to furnish from time to time any and all documents,
instruments, information and undertakings that may be necessary in order
to effect such listing; and to maintain the same until none of the
Underwritten Securities is outstanding or until such time as payment of
principal of and premium, if any, and interest on all the Underwritten
Securities has been duly provided for, whichever is earlier; provided that
if the Company can no longer reasonably maintain such listing, the Company
shall use its best efforts to obtain and maintain the quotation for, or
listing of, the Underwritten Securities on such other securities exchange
or exchanges as the Company may, with the approval of the Representative,
determine;
(k) To pay the costs incident to the authorization, issuance, sale and
delivery of the Underwritten Securities and any taxes payable in that
connection; the costs incident to the preparation, printing and filing
under the Act of the Registration 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
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10
documents; the costs of printing this Agreement and the Delayed Delivery
Contracts, if any; the fees and disbursements of the Company's counsel,
accountants and other advisors; the fees and expenses of the Trustee,
including the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Underwritten Securities, to the
extent the Trustee or its counsel, as the case may be, requires
reimbursement thereof; the costs of any filings with the National
Association of Securities Dealers, Inc.; fees paid to rating agencies in
connection with the rating of the Securities, including the Underwritten
Securities; the fees and expenses of qualifying the Underwritten
Securities under the securities laws of the several jurisdictions as
provided in this Paragraph and of preparing and printing a Blue Sky
Memorandum (including fees of counsel to the Underwriters); 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
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any investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Paragraph 8(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of outside counsel chosen by the
Representative), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue 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 of more than one counsel (in addition to any local
counsel) separate
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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 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Paragraph 8 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Underwritten Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the
Underwritten Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Underwritten Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, bear to the aggregate initial offering price of the Underwritten
Securities.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties'
<PAGE>
13
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 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
<PAGE>
14
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company or the Company and its
subsidiaries taken as a whole, whether or not arising in the ordinary course of
business, the effect of which is such as to make it, in the judgment of the
Representative, impracticable to market the Underwritten Securities or to
enforce contracts for the sale of the Underwritten Securities, or (ii) if there
has occurred any material adverse change in the financial markets in the United
States, any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representative,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (iii) if trading in any securities
of the Company or Bell Atlantic Corporation has been suspended or materially
limited by the Commission, or if trading generally on the American Stock
Exchange or the New York Stock Exchange or in the Nasdaq National Market has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) if a banking moratorium has been declared by either Federal or New York
authorities.
(b) If this Agreement is terminated pursuant to this Paragraph 9, such
termination shall be without liability of any party to any other party except as
provided in Paragraph 11 hereof, and provided further that Paragraphs 1 and 8
shall survive such termination and remain in full force and effect.
10. The respective obligations of the Underwriters under the Agreement
with respect to the Underwritten Securities are subject to the accuracy, on the
date hereof and on the Delivery Date, of the representations and warranties of
the Company contained herein, to performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions
applicable to the Underwritten Securities.
(a) At or before the Delivery Date, no stop order suspending the
effectiveness of 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
<PAGE>
15
is required to be stated therein or is necessary to make the statements
therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Underwritten
Securities and the Indenture and the form of the Registration 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 her 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
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), and has all power and authority
necessary to own its properties and conduct the business in which it
is engaged as described in the Prospectus;
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust
Indenture Act and, assuming due authentication, execution and
delivery by the Trustee, constitutes a valid and legally binding
instrument of the Company enforceable in accordance with its terms;
(iv) The Immediate Delivery Underwritten Securities have been
duly authorized, executed and issued by the Company and, assuming
due authentication thereof by the Trustee and upon payment and
delivery in accordance with this Agreement, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms and entitled to the benefits of the
Indenture;
(v) The Delayed Delivery Underwritten Securities, if any, have
been duly authorized and, when duly executed and issued by the
Company and, assuming due authentication thereof by the Trustee and
upon payment and delivery by the respective purchasers thereof in
accordance with the terms of the related Delayed Delivery Contracts,
will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms and entitled to
the benefits of the Indenture;
<PAGE>
16
(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 result in the creation
or imposition of any lien, charge or encumbrance upon any of the
assets of the Company pursuant to the terms of, or constitute a
default under, any agreement, indenture or instrument known to such
counsel, or result in a violation of the corporate charter or
by-laws of the Company or, to the best of such counsel's knowledge,
any order, rule or regulation of any court or governmental agency
having jurisdiction over the Company or its property;
<PAGE>
17
(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; 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.
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.
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 respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company or the Company and its subsidiaries taken as a whole, whether or
<PAGE>
18
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
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.
(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 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, if required, 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.
(j) The Underwritten Securities shall have been accepted for listing on
the Stock Exchange (if any), subject to official notice of issuance.
<PAGE>
19
(k) At the Delivery Date, the Underwritten Securities shall be rated at
least "A2" by Moody's Investor's Service Inc., "A+" by Standard & Poor's Ratings
Group, a division of McGraw-Hill, Inc., and "A" by Duff & Phelps Credit Rating
Co., and the Company shall have delivered to the Representative a letter dated
the Delivery Date, from each such rating agency, or other evidence satisfactory
to the Representative, confirming that the Underwritten Securities have such
ratings; and since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Underwritten Securities or any of the
Company's other debt securities by any such rating agency, and no such rating
agency shall have publicly announced that it has withdrawn or has put under
surveillance or review with negative implications, including putting on what is
commonly termed a "watch list," its rating of the Underwritten Securities or any
of the Company's other debt securities.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to counsel
for the Underwriters.
11. If the Company shall fail to tender the Immediate Delivery
Underwritten Securities for delivery to the Underwriters for any reason
permitted under this Agreement, or if the Underwriters shall decline to purchase
the Immediate Delivery Underwritten Securities for any reason permitted under
this Agreement (other than pursuant to Paragraph 5 hereof). the Company shall
reimburse the Underwriters for reasonable fees and expenses of their counsel and
for such other out-of-pocket expenses as shall have been incurred by them in
connection with this Agreement and the proposed purchase of Immediate Delivery
Underwritten Securities and the solicitation of any purchases of the Delayed
Delivery Underwritten Securities, and upon demand the Company shall pay the full
amount thereof to the Representative. If this Agreement is terminated pursuant
to Paragraph 5 hereof by reason of the default of one or more Underwriters, the
Company shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
12. The Company shall be entitled to act and rely upon any request,
consent, notice or agreement by, or on behalf of, the Representative. Any notice
by the Company to the Underwriters shall be sufficient if given in writing or by
telegraph addressed to the Representative at its address set forth in Schedule I
hereto, and any notice by the Underwriters to the Company shall be sufficient if
given in writing or by telegraph addressed to the Company at 1095 Avenue of the
Americas, New York, New York 10036, Attention of the Treasurer.
13. This Agreement shall be binding upon the Underwriters, the Company,
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Act, and (b) the indemnity agreement of the Underwriters contained in
Paragraph 8 hereof shall be deemed to be for the benefit of directors of the
Company, officers of the Company who have signed the Registration Statement and
any person controlling the Company. Nothing in this Agreement is intended or
shall be construed to give any person,
<PAGE>
20
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.
<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,
NEW YORK TELEPHONE COMPANY
By /s/ Ellen C. Wolf
--------------------------
Name: Ellen C. Wolf
Title: Treasurer
The foregoing Agreement is hereby confirmed
and accepted as of the date first
above written.
MORGAN STANLEY & CO. INCORPORATED
By /s/ Michael Fuses
- ---------------------------------
Name: Michael Fuses
Title: Vice President
For itself and as Representative of the other Underwriters named in Schedule II
to the foregoing Agreement.
<PAGE>
SCHEDULE I
Underwriting Agreement dated April 7, 1998.
Registration Statement No. 333-45779.
Representatives and Addresses: Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
First Union Capital Markets Corp., a
Division of Wheat First Securities
301 South College Street
Charlotte, North Carolina 28288-0601
Underwritten Securities
Designation: Thirty Year 6.50% Debentures, due
April 15, 2028
Principal amount: $100,000,000
Indenture: Indenture dated as of February 1,
1998 from New York Telephone
Company, to The Chase Manhattan
Bank, as Trustee.
Date of Maturity: April 15, 2028.
Interest Rate: 6.50% per annum to April 15, 2028,
payable April 15 and October 15 of
each year, commencing October 15,
1998, to holders of record at the
close of business on April 1 or
October 1 prior to the payment date.
Purchase Price: 99.088% of the principal amount
thereof.
Redemption Provisions: Not redeemable.
Authorized Denominations: $1,000 and integral multiples
thereof.
Stock Exchange Listing: None.
Delivery Date, Time and Location: April 15, 1998 at 10:00 a.m. at the
offices of Simpson Thacher &
Bartlett, 425 Lexington Avenue, New
York, NY 10017.
<PAGE>
SCHEDULE II
Principal
Amount of
Underwritten
Securities
----------
Name of Underwriter
- -------------------
Morgan Stanley & Co. Incorporated.................................. $50,000,000
First Union Capital Markets, a Division of Wheat First Securities.. $50,000,000
------------
Total $100,000,000
============
<PAGE>
EXHIBIT A
$
NEW YORK TELEPHONE COMPANY
DEBT SECURITIES
DELAYED DELIVERY CONTRACT
[DATE]
NEW YORK TELEPHONE COMPANY
1095 Avenue of 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 , 199 , as supplemented by the
prospectus supplement dated , 199 (collectively, the "Prospectus"), receipt of a
copy of which is hereby acknowledged, at a purchase price of % of the
principal amount thereof plus accrued interest from , 199 to the
Delivery Date (as defined in the next paragraph) and on the further terms and
conditions set forth in this Contract.
Payment for and delivery of the Securities to be purchased by the
undersigned shall be made on , 199 , herein called the "Delivery Date".
At 10:00 A.M., New York time, on the Delivery Date, the Securities to be
purchased by the undersigned hereunder will be delivered by the Company to the
undersigned, and the undersigned will accept delivery of such Securities and
will make payment to the Company of the purchase price therefor, at the office
of . Payment will be certified or official bank check payable in next-day
funds settled through the New York Clearing House to or upon the order of the
Company.
This Contract will terminate and be of no further force and effect after
, 199 , unless (i) on or before such date it shall have been executed
and delivered by both parties hereto or (ii) the Company shall have sold to the
Underwriters named in the Prospectus the Immediate Delivery Underwritten
Securities (as defined in the Underwriting Agreement referred to in the
Prospectus) and the Company shall have mailed or delivered to the undersigned at
its address set forth below a notice to that effect, stating the date of the
<PAGE>
3
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 , 19 .
NEW YORK TELEPHONE COMPANY
By_________________________
Title
OFFICER'S CERTIFICATE PURSUANT TO SECTION
2.02(b) OF THE INDENTURE IDENTIFIED BELOW
The undersigned, Ellen C. Wolf, Treasurer of New York Telephone Company (the
"Company"), acting pursuant to authorizations contained in Board Resolutions,
copies of which are delivered herewith, duly adopted on January 27, 1998, by the
Board of Directors of the Company, do hereby authorize, adopt and approve the
following terms for a series (the "Series") of the Company's debt securities to
be issued under an Indenture, dated as of February 1, 1998 (the "Indenture"),
from the Company to The Chase Manhattan Bank, as Trustee (the "Trustee"),
pursuant to the Registration Statement on Form S-3 (No. 333-45779) under the
Securities Act of 1933, as amended. (As used herein, the term "Prospectus" shall
mean the Prospectus dated February 13, 1998, as supplemented by the Prospectus
Supplement dated April 7, 1998, filed with the Securities and Exchange
Commission with respect to the Series.)
(1) Title of Securities of the Series: Ten Year 6% Debentures,
due April 15, 2008
(2) Limit, if any, on the aggregate
principal amount of Securities
of the Series: $250,000,000
(3) Date or dates, or manner of
determining the same, on
which the principal of
Securities of the Series
is payable: April 15, 2008
(4) With respect to interest on
Securities of the Series:
(a) The rate or method of
calculation: 6% per annum
(b) The date from which
such interest shall accrue: April 15, 1998
(c) The dates on which interest
shall be payable or the
manner of determining the
same: April 15 and October 15,
commencing October 15, 1998
(d) Record dates for interest
payable on any interest
payment date: To holders of record at the close
of business on April 1 and
October 1 prior to the interest
payment date.
<PAGE>
(5) Place or places where
Securities of the Series
shall be payable: At the office or agency of the
Company in New York, New York. At
its option, the Company may pay
interest by check mailed to the
holder's address as it appears on
the register.
(6) With respect to redemption,
in whole or in part, of Securities
of the Series at the option
of the Company:
(a) The period or periods within
which such redemptions may
be made: Not Applicable
(b) The applicable redemption
price or prices: Not Applicable
(c) The terms and conditions
of such redemptions: Not Applicable
(7) With respect to the mandatory
redemption or purchase of
Securities of the Series:
(a) Any provision for a sinking or
analogous fund or for
redemption or purchase at the
option of a Holder: Not Applicable
(b) The period or periods within
which such redemptions or
purchases must be made: Not Applicable
(c) The applicable redemption or
purchase price or prices: Not Applicable
(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
integral 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
-2-
<PAGE>
(10) (a) Whether Securities of the Series
are issuable as Registered
Securities, Unregistered Securities
(with or without interest coupons),
or any combination thereof: Registered Securities
(b) Whether, and the terms upon
which, Unregistered Securities of the
Series may be exchanged for
Registered Securities of the same
Series and vice versa: Not applicable
(11) Any provisions for payment of
additional amounts for taxes and for
redemption, in the event the Company
must comply with the reporting
requirements or must pay additional
amounts in respect of any Securities
of the Series: Not Applicable
(12) With respect to the issuance
of any Global Securities of
the Series: To be issued wholly in permanent
form for deposit with The
Depository Trust Company, as
Depositary.
(13) Any other covenants and terms of
Securities of the Series, including
any additional restrictive covenants
not described above and any terms
required by United States laws or
regulations: None
(14) Issue price to public of Securities
of the Series: 99.215%
(15) Underwriter's commission or discount
as a percentage of the principal
amount of Securities of the Series to
be issued: 0.294%
(16) Agency fees as a percentage of the
principal amount of Securities of the
Series to be issued: Not Applicable
Annexed hereto is the form of the Securities of the Series.
-3-
<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.
NEW YORK TELEPHONE COMPANY
/s/ Ellen C. Wolf
--------------------------
Ellen C. Wolf
Treasurer
Dated: As of April 7, 1998
-4-
<PAGE>
Form of the Company's Ten Year 6% Debentures
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
Ten Year 6% Debentures,
due April 15, 2008
No. $ Cusip: ___________
NEW YORK TELEPHONE COMPANY, a New York corporation (hereinafter called the
"Company"), for value received, hereby promises to pay to or registered
assigns, the principal sum of DOLLARS on April 15, 2008 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 April 15 and October 15, 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 fifteenth day of April
or October, as the case may be, to which interest on this Debenture has been
paid preceding the date hereof (unless the date hereof is an April 15 or October
15 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 April 15, 1998) 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 April 1 and before the
next following April 15 or is after October 1 and before the next following
October 15, this Debenture shall bear interest from such April 15 or October 15;
provided, however, that if the Company shall default in the payment of interest
due on such April 15 or October 15, then this Debenture shall bear interest from
the next preceding date to which interest has been paid. The interest so payable
on any April 15 or October 15 will be paid to the person in whose name this
Debenture shall be registered at the close of business on the April 1 prior to
such April 15 or the October 1 prior to such October 15, unless such April 15 or
October 15 shall be a Legal Holiday (as defined in the Indenture), in which
event the next succeeding 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
<PAGE>
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 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: Vice President
By________________________________
Title: Assistant Treasurer
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>
NEW YORK TELEPHONE COMPANY
Ten Year 6% Debentures,
due April 15, 2008
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 February 1, 1998 (herein referred to as the "Indenture"), duly executed
and delivered by the Company to The Chase Manhattan Bank, 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 Ten Year 6% Debentures, due April 15,
2008 of the Company and such series is limited in aggregate principal amount to
$250,000,000. References herein to Debentures shall mean the Debentures of said
series.
The Debentures are not redeemable at the option of the Company prior to
maturity.
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
<PAGE>
interest on any Security. However, without the consent of each Securityholder
affected, an amendment or waiver may not: (1) reduce the amount of Securities
whose holders must consent to an amendment or waiver; (2) change the rate of or
change the time for payment of interest on any Security; (3) change the
principal of or change the fixed maturity of any Security; (4) waive a default
in the payment of the principal of or interest on any Security; (5) make any
Security payable in money other than that stated in the Security; or (6) make
any change in 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.
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.
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
TEN ENT--as tenants by the entirety (state)--(Name) as Custodian for (Name)
JT TEN --as joint tenants with right Under the (State) Uniform Gifts to
of survivorship and not as Minors Act
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.
OFFICER'S CERTIFICATE PURSUANT TO SECTION
2.02(b) OF THE INDENTURE IDENTIFIED BELOW
The undersigned, Ellen C. Wolf, Treasurer of New York Telephone Company (the
"Company"), acting pursuant to authorizations contained in Board Resolutions,
copies of which are delivered herewith, duly adopted on January 27, 1998, by the
Board of Directors of the Company, do hereby authorize, adopt and approve the
following terms for a series (the "Series") of the Company's debt securities to
be issued under an Indenture, dated as of February 1, 1998 (the "Indenture"),
from the Company to The Chase Manhattan Bank, as Trustee (the "Trustee"),
pursuant to the Registration Statement on Form S-3 (No. 333-45779) under the
Securities Act of 1933, as amended. (As used herein, the term "Prospectus" shall
mean the Prospectus dated February 13, 1998, as supplemented by the Prospectus
Supplement dated April 7, 1998, filed with the Securities and Exchange
Commission with respect to the Series.)
(1) Title of Securities of the Series: Thirty Year 6.50% Debentures, due
April 15, 2028
(2) Limit, if any, on the aggregate
principal amount of Securities
of the Series: $100,000,000
(3) Date or dates, or manner of
determining the same, on
which the principal of
Securities of the Series
is payable: April 15, 2028
(4) With respect to interest on
Securities of the Series:
(a) The rate or method of
calculation: 6.50% per annum
(b) The date from which
such interest shall accrue: April 15, 1998
(c) The dates on which interest
shall be payable or the
manner of determining the
same: April 15 and October 15,
commencing October 15, 1998
(d) Record dates for interest
payable on any interest
payment date: To holders of record at the close
of business on April 1 and
October 1 prior to the interest
payment date.
<PAGE>
(5) Place or places where
Securities of the Series
shall be payable: At the office or agency of the
Company in New York, New York. At
its option, the Company may pay
interest by check mailed to the
holder's address as it appears on
the register.
(6) With respect to redemption, in whole
or in part, of Securities of the
Series at the option of the Company:
(a) The period or periods within
which such redemptions may be
made: Not Applicable
(b) The applicable redemption
price or prices: Not Applicable
(c) The terms and conditions of
such redemptions: Not Applicable
(7) With respect to the mandatory
redemption or purchase of
Securities of the Series:
(a) Any provision for a sinking or
analogous fund or for
redemption or purchase at the
option of a Holder: Not Applicable
(b) The period or periods within
which such redemptions or
purchases must be made: Not Applicable
(c) The applicable redemption or
purchase price or prices: Not Applicable
(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 integral 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
2
<PAGE>
(10) (a) Whether Securities of the Series
are issuable as Registered
Securities, Unregistered Securities
(with or without interest coupons),
or any combination thereof: Registered Securities
(b) Whether, and the terms upon
which, Unregistered Securities of
the Series may be exchanged for
Registered Securities of the same
Series and vice versa: Not applicable
(11) Any provisions for payment of
additional amounts for taxes and for
redemption, in the event the Company
must comply with the reporting
requirements or must pay additional
amounts in respect of any Securities
of the Series: Not Applicable
(12) With respect to the issuance
of any Global Securities of
the Series: To be issued wholly in permanent
form for deposit with The
Depository Trust Company, as
Depositary.
(13) Any other covenants and terms of
Securities of the Series, including
any additional restrictive covenants
not described above and any terms
required by United States laws or
regulations: None
(14) Issue price to public of Securities
of the Series: 99.451%
(15) Underwriter's commission or discount
as a percentage of the principal
amount of Securities of the Series
to be issued: 0.363%
(16) Agency fees as a percentage of the
principal amount of Securities of
the Series to be issued: Not Applicable
Annexed hereto is the form of the Securities of the Series.
3
<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.
NEW YORK TELEPHONE COMPANY
/s/ Ellen C. Wolf
------------------------------------------
Ellen C. Wolf
Treasurer
Dated: As of April 7, 1998
4
<PAGE>
Form of the Company's Thirty Year 6.50% Debentures
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
Thirty Year 6.50% Debentures,
due April 15, 2028
No. $ Cusip: ___________
NEW YORK TELEPHONE COMPANY, a New York corporation (hereinafter called the
"Company"), for value received, hereby promises to pay to or registered
assigns, the principal sum of DOLLARS on April 15, 2028 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 April 15 and October 15, 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 fifteenth day of April
or October, as the case may be, to which interest on this Debenture has been
paid preceding the date hereof (unless the date hereof is an April 15 or October
15 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 April 15, 1998) 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 April 1 and before the
next following April 15 or is after October 1 and before the next following
October 15, this Debenture shall bear interest from such April 15 or October 15;
provided, however, that if the Company shall default in the payment of interest
due on such April 15 or October 15, then this Debenture shall bear interest from
the next preceding date to which interest has been paid. The interest so payable
on any April 15 or October 15 will be paid to the person in whose name this
Debenture shall be registered at the close of business on the April 1 prior to
such April 15 or the October 1 prior to such October 15, unless such April 15 or
October 15 shall be a Legal Holiday (as defined in the Indenture), in which
event the next succeeding 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
<PAGE>
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 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: Vice President
By________________________________
Title: Assistant Treasurer
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>
NEW YORK TELEPHONE COMPANY
Thirty Year 6.50% Debentures,
due April 15, 2028
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 February 1, 1998 (herein referred to as the "Indenture"), duly executed
and delivered by the Company to The Chase Manhattan Bank, 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 Thirty Year 6.50% Debentures, due April
15, 2028 of the Company and such series is limited in aggregate principal amount
to $100,000,000. References herein to Debentures shall mean the Debentures of
said series.
The Debentures are not redeemable at the option of the Company prior to
maturity.
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
<PAGE>
interest on any Security. However, without the consent of each Securityholder
affected, an amendment or waiver may not: (1) reduce the amount of Securities
whose holders must consent to an amendment or waiver; (2) change the rate of or
change the time for payment of interest on any Security; (3) change the
principal of or change the fixed maturity of any Security; (4) waive a default
in the payment of the principal of or interest on any Security; (5) make any
Security payable in money other than that stated in the Security; or (6) make
any change in 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.
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.
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
TEN ENT--as tenants by the entirety (state)--(Name) as Custodian for (Name)
JT TEN--as joint tenants with right Under the (State) Uniform
of survivorship and not as Gifts to Minors Act
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.
New York Telephone Company
Computation of Ratio of Earnings to Fixed Charges
(Dollars in Millions)
<TABLE>
<CAPTION>
Years Ended December 31,
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1997 1996 * 1995 * 1994 * 1993 *
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<S> <C> <C> <C> <C> <C>
Income before provision for income taxes,
extraordinary items, and cumulative effect of
changes in accounting principles $ 637.6 $1,215.6 $ 770.0 $515.4 $120.2
Interest expense, including interest on capital
lease obligations 332.1 288.5 306.8 314.4 348.6
Portion of rent expense representative of the
interest factor 35.4 31.5 32.2 33.3 37.6
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Income, as adjusted $1,005.1 $1,535.6 $1,109.0 $863.1 $506.4
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Fixed charges:
Interest expense, including interest on capital
lease obligations $ 332.1 $ 288.5 $ 306.8 $314.4 $348.6
Portion of rent expense representative of the
interest factor 35.4 31.5 32.2 33.3 37.6
Interest capitalized on construction 21.6 22.4 --- --- ---
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Fixed Charges $ 389.1 $ 342.4 $ 339.0 $347.7 $386.2
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Ratio of Earnings to Fixed Charges 2.58 4.48 3.27 2.48 1.31
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</TABLE>
* Revised to reflect certain reclassifications in presentation and certain
retroactive adjustments to conform the accounting methodologies of Bell
Atlantic and NYNEX as a result of the merger.
