Exhibit 1
SOUTHWESTERN XXXX TELEPHONE COMPANY
DEBT SECURITIES
FORM OF UNDERWRITING AGREEMENT
October 18, 1995
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Southwestern Xxxx Telephone Company, a Missouri
corporation (the "Telephone Company" or "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 Securities will be issued
under an Indenture, dated as of February 1, 1985, as
supplemented by a First Supplemental Indenture, dated as of
June 1, 1991 (together, the "Indenture"), from the Telephone
Company to The Bank of New York, as Trustee, in one or more
series, which series may vary as to interest rates,
maturities, redemption provisions and selling prices, with
all such terms for any particular series being determined at
the time of sale. The Telephone Company proposes to sell to
the underwriters named in Schedule II hereto
("Underwriters") for whom you are acting as representative
("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").
1. The Telephone Company represents and warrants to,
and agrees with, the several Underwriters that:
(a) A registration statement on Form S-3 with
respect to the Securities has been prepared by the
Telephone Company in conformity with the requirements of
the Securities Act of 1933, as amended ("Act" or
"Securities Act"), and the rules and regulations ("Rules
and Regulations") of the Securities and Exchange
Commission ("Commission" or "SEC") thereunder and has
become effective. As used in this Agreement, (i)
"Registration Statement" means that registration
statement, as amended or supplemented to the date hereof
(including all documents incorporated therein by
reference); (ii) "Preliminary Prospectus" means each
prospectus (including all documents incorporated therein
by reference) included in that Registration Statement,
or amendments thereto 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, or mailed
for filing to, the Commission pursuant to paragraph (b)
or (c) of Rule 424 of the Rules and Regulations. The
Commission has not issued any order preventing or
suspending the use of the Prospectus.
(b) The Registration Statement and each
Prospectus contain, and (in the case of any amendment or
supplement to any such document, or any material
incorporated by reference in any such document, filed
with the Commission after the date as of which this
representation is being made) will contain at all times
during the period specified in Paragraph 8(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, will conform with the requirements of the Trust
Indenture Act and the rules and regulations of the
Commission thereunder, and the Registration Statement
and the Prospectus do not, and (in the case of any
amendment or supplement to any such document, or any
material incorporated by reference in any such document,
filed with the Commission after the date as of which
this representation is being made) will not at any time
during the period specified in Paragraph 8(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 Telephone Company makes no
representation or warranty as to information contained
in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with
information furnished in writing to the Telephone
Company through the Representative by or on behalf of
any Underwriter specifically for use therein, or as to
any statements in or omissions from the Statement of
Eligibility and Qualification of the Trustee under the
Indenture.
(c) The Telephone Company is not in violation of
its corporate charter or bylaws or in default under any
agreement, indenture or instrument, the effect of which
violation or default would be material to the Telephone
Company; the execution, delivery and performance of
this Agreement and any Delayed Delivery Contracts (as
defined in Paragraph 3 hereof) and compliance by the
Telephone Company with the provisions of the
Underwritten Securities and the Indenture will not
conflict with, result in the creation or imposition of
any lien, charge or encumbrance upon any of the assets
of the Telephone Company pursuant to the terms of, or
constitute a default under, any agreement, indenture or
instrument, or result in a violation of the corporate
charter or bylaws of the Telephone Company or any
order, rule or regulation of any court or governmental
agency having jurisdiction over the Telephone Company;
and except as required by the Act, the Trust Indenture
Act and applicable state securities laws, no consent,
authorization or order of, or filing or registration
with, any court or governmental agency is required for
the execution, delivery and performance of this
Agreement, the Delayed Delivery Contracts, if any, and
the Indenture.
(d) Except as described in or contemplated by
the Registration Statement and the Prospectus, there
shall have not occurred any changes or any development
involving a prospective change, or affecting
particularly the business or properties of the Telephone
Company or its subsidiaries which materially impairs the
investment quality of the Underwritten Securities since
the dates as of which information is given in the
Registration Statement and the Prospectus.
(e) On the Delivery Date (as defined in
Paragraph 7 hereof) (i) the Indenture will have been
duly authorized, executed and delivered by the Telephone
Company and will constitute the legally binding
obligation of the Telephone Company, enforceable in
accordance with its terms, (ii) the Underwritten
Securities will have been duly authorized and, upon
payment therefor as provided in this Agreement, will
constitute legally binding obligations of the Telephone
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.
(f) The Telephone Company has been duly
incorporated, is validly existing as a corporation in
good standing under the laws of the State of Missouri,
with full corporate power and authority to own its
properties and conduct its business as described in the
Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the
laws of each jurisdiction which requires such
qualification wherein it owns or leases properties or
conducts business, except where the failure to so
qualify would not have a material adverse effect on the
Telephone Company.
(g) Except as described in the Prospectus, there
is no material litigation or governmental proceeding
pending or, to the knowledge of the Telephone Company,
threatened against the Telephone Company which is
reasonably expected to result in any material adverse
change in the financial condition, results of
operations, business or prospects of the Telephone
Company or which is required to be disclosed in the
Registration Statement.
(h) The financial statements filed as part of
the Registration Statement or included in any
Preliminary Prospectus or the 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 8(c) hereof, fairly, the financial
condition and results of operations of the Telephone
Company, at the dates and for the periods indicated,
and have been, and (in the case of any amendment or
supplement to any such document, or any material
incorporated by reference in any such document, filed
with the Commission after the date as of which this
representation is being made) will be at all times
during the period specified in Paragraph 8(c) hereof,
prepared in conformity with generally accepted
accounting principles applied on a consistent basis
throughout the periods involved (except as described in
the notes thereto).
(i) The documents incorporated by reference into
any Preliminary Prospectus or the 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 8(c) hereof, prepared by the Telephone Company
in conformity with the applicable requirements of the
Act and the Rules and Regulations and the Exchange Act
and the rules and regulations of the Commission
thereunder and such documents have been, or (in the case
of any amendment or supplement to any such document, or
any material incorporated by reference in any such
document, filed with the Commission after the date as of
which this representation is being made) will be at all
times during the period specified in Paragraph 8(c)
hereof, timely filed as required thereby.
(j) 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
the Prospectus by the Exchange Act or the rules and
regulations of the Commission thereunder, which have not
been filed as exhibits to the Registration Statement or
to such document or incorporated therein by reference as
permitted by the Rules and Regulations or the rules and
regulations of the Commission under the Exchange Act as
required.
(k) No order, consent, approval, authorization,
registration or qualification of or with any
governmental agency or body having jurisdiction over the
Telephone Company or any of its properties is required
for the issue and sale of the Underwritten Securities or
the consummation by the Telephone Company of the
transactions contemplated by this Agreement or the
Indenture, except such as have been, or will have been
prior to the Delivery Date, obtained under the Act and
the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Underwritten Securities by the Underwriters.
2. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth,
the Telephone Company agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter agrees,
severally and not jointly, to purchase from the Telephone
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 Telephone Company and the
Representative may approve ("Delayed Delivery Contracts").
The Telephone 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 Telephone Company
will pay to the Representative, for the account of the
Underwriters, the compensation specified in Schedule I
hereto for arranging the sale of Delayed Delivery
Underwritten Securities. The Underwriters shall have no
responsibility with respect to the validity or performance
of any Delayed Delivery Contracts.
For the purpose of determining the principal amount of
Immediate Delivery Underwritten Securities to be purchased
by each Underwriter, there shall be deducted from the
principal amount of Underwritten Securities to be purchased
by such Underwriter as set forth in Schedule II hereto that
portion of the aggregate principal amount of Delayed
Delivery Underwritten Securities that the principal amount
of Underwritten Securities to be purchased by such
Underwriter as set forth in Schedule II hereto bears to the
aggregate principal amount of Underwritten Securities set
forth therein 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. [Reserved]
5. The Telephone 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.
6. If any Underwriter defaults in the performance of
its obligations under this Agreement, the remaining non-
defaulting Underwriters shall be obligated to purchase the
Immediate Delivery Underwritten Securities which the
defaulting Underwriter agreed but failed to purchase in the
respective proportions which the principal amount of
Underwritten Securities set forth in Schedule II hereto to
be purchased by each remaining non-defaulting Underwriter
set forth therein bears to the aggregate principal amount of
Underwritten Securities set forth therein to be purchased by
all the remaining non-defaulting Underwriters; provided that
the remaining non-defaulting Underwriters shall not be
obligated to purchase any Immediate Delivery Underwritten
Securities if the aggregate principal amount of Immediate
Delivery Underwritten Securities which the defaulting
Underwriter 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 Telephone Company, except
that the Telephone Company will continue to be liable for
the payment of expenses as set forth in Paragraph 8(i)
hereof.
Nothing contained in this Paragraph 6 shall relieve a
defaulting Underwriter of any liability it may have to the
Telephone Company for damages caused by its default. If
other Underwriters are obligated or agree to purchase the
Immediate Delivery Underwritten Securities of a defaulting
or withdrawing Underwriter, either the Representative or the
Telephone Company may postpone the Delivery Date for up to
seven full business days in order to effect any changes that
in the opinion of the Telephone Company or the
Representative may be necessary in the Registration
Statement, the Prospectus or in any other document or
arrangement.
7. 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 Telephone Company shall
deliver the Immediate Delivery Underwritten Securities to
the Representative for the account of each Underwriter
against payment to or upon the order of the Telephone
Company of the purchase price by certified or official bank
check or checks payable in next-day funds settled through
the New York Clearing House or such other Clearing House as
is named in Schedule I. Time shall be of the essence, and
delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each
Underwriter hereunder. Upon delivery, the Immediate
Delivery Underwritten Securities shall be in such form or
forms and in such denominations as may be set forth in
Schedule I. Immediate Delivery Underwritten Securities in
registered form shall be in such authorized denominations
and registered in such names as the Representative shall
request in writing not less than two full business days
prior to the Delivery Date. For the purpose of expediting
the checking and packaging of the Immediate Delivery
Underwritten Securities, the Telephone Company shall make
the Immediate Delivery Underwritten Securities 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. For purposes of Rule 15c6-1 under the
Exchange Act, the Delivery Date (if later than the otherwise
applicable settlement date) shall be the date for payment of
funds and delivery of securities for all the Immediate
Delivery Underwritten Securities sold pursuant to the
offering, other than Delayed Delivery Underwritten
Securities for which payment of funds and delivery of
securities shall be as hereinafter provided.
8. The Telephone Company agrees with the several
Underwriters:
(a) The Telephone Company will furnish promptly
to the Representative and to counsel for the
Underwriters signed copies of the Registration Statement
as originally filed and each amendment and supplement
thereto filed prior to the date hereof and relating to
or covering the Underwritten Securities, and a copy of
the Prospectus filed with the Commission, including all
documents incorporated therein by reference and all
consents and exhibits filed therewith;
(b) The Telephone Company will 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) the Prospectus and (iii) any
documents incorporated by reference in the Prospectus;
(c) During any period when a Prospectus relating
to the Underwritten Securities is required by law to be
delivered, the Telephone Company will not file any
amendment of the Registration Statement nor will the
Telephone Company file any amendment or supplement to
the Prospectus (except for (i) an amendment or
supplement consisting solely of the filing of a
document under the Exchange Act or (ii) a supplement
relating to an offering of securities other than the
Underwritten Securities, unless the Telephone Company
has furnished you a copy of such proposed amendment or
supplement for your review prior to filing and will not
file any such proposed amendment or supplement to which
you reasonably object. Subject to the foregoing
sentence, the Telephone Company will cause the
Prospectus and any amendment or supplement thereto to
be filed with the SEC as required pursuant to Rule 424
under the Securities Act. The Telephone Company will
promptly advise you (i) when the Prospectus or any
amendment or supplement thereto shall have been filed
with the SEC pursuant to Rule 424 under the Securities
Act, (ii) when any amendment of the Registration
Statement shall have become effective, (iii) of any
request by the SEC for any amendment of the
Registration Statement or amendment of or supplement to
the Prospectus or for any additional information, (iv)
of the issuance by the SEC of any stop order suspending
the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that
purpose and (v) of the receipt by the Telephone 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
threatening of any proceeding for such purpose. The
Telephone Company will promptly (upon filing thereof)
furnish you a copy of any amendment or supplement to
the Prospectus or Registration Statement not furnished
to the Representative for prior review pursuant to
exceptions (i) or (ii) of the first sentence of this
subsection (a). The Telephone Company will use its
best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(d) If, at any time when a prospectus relating
to the Underwritten Securities is required to be
delivered under the Securities Act, any event occurs as
a result of which the Registration Statement, as then
amended, or the Prospectus, as then supplemented, would
include any untrue statement of a material fact or omit
to state any material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading, or if it
shall be necessary to amend the Registration Statement
or to supplement the Prospectus to comply with the
Securities Act or the Exchange Act or the respective
rules thereunder, the Telephone Company promptly will
(i) notify you of the happening of such event, (ii)
prepare and file with the SEC, subject to the first
sentence of paragraph (c) of this Section 8, an
amendment or supplement which will correct such
statement or omission or an amendment or supplement
which will effect such compliance and (iii) will supply
any such amended or supplemented Prospectus to you in
such quantities as the Representative may reasonably
request.
(e) As soon as practicable, the Telephone
Company will make generally available to its security
holders and to the Representative an earnings statement
or statements of the Telephone Company which will
satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 under the Securities Act.
(f) During a period of five years after the date
hereof, the Telephone Company will furnish to the
Representative copies of all reports and financial
statements furnished by the Telephone Company to each
securities exchange on which securities issued by the
Telephone 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.
(g) The Telephone Company will endeavor to
qualify the Underwritten Securities for sale under the
laws of such jurisdictions as you may designate and will
maintain such qualifications in effect so long as
required for the distribution of the Underwritten
Securities, provided that in connection therewith the
Telephone Company shall not be required to qualify as a
foreign corporation or take any action which would
subject it to general or unlimited service of process in
any jurisdiction where it is not now so subject.
(h) The Telephone Company will pay the costs
incident to the authorization, issuance 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 of distributing the Registration
Statement as originally filed and each amendment and
post-effective amendment thereof (including exhibits),
any Preliminary Prospectus, the Prospectus and any
documents incorporated by reference in any of the
foregoing documents; the costs of producing this
Agreement, the Delayed Delivery Contracts, if any, and
the Indenture; 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 and a memorandum concerning the legality
of the Securities, including the Underwritten
Securities, as an investment (including fees of counsel
to the Underwriters); and all other costs and expenses
incident to the performance of the Telephone Company's
obligations under this Agreement; provided that, except
as provided in this Paragraph and in Paragraph 12
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; and
(i) 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 Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act.
9. (a) The Telephone Company shall indemnify and
hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of the
Act from and against any loss, claim, damage or
liability, joint or several, and any action in respect
thereof, to which that Underwriter or controlling
person may become subject, under the Act or otherwise,
insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue
statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or arises out
of, or is based upon, the omission or alleged omission
to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and shall reimburse each Underwriter and
such controlling person for any legal and other
expenses reasonably incurred by that Underwriter or
controlling person in investigating or defending or
preparing to defend against any such loss, claim,
damage, liability or action as such expenses are
incurred (but no more frequently than annually);
provided, however, that the Telephone Company shall not
be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of,
or is based upon, any untrue statement or alleged
untrue statement or omission or alleged omission made
in any Preliminary Prospectus, the Registration
Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the
Telephone Company through the Representative by or on
behalf of any Underwriter specifically for use therein.
The foregoing indemnity agreement is in addition to any
liability which the Telephone Company may otherwise
have to any Underwriter or controlling person.
(b) Each Underwriter shall indemnify and hold
harmless the Telephone Company, each of their directors,
each of their officers who signed the Registration
Statement and any person who controls the Telephone
Company within the meaning of the Act from and against
any loss, claim, damage or liability, joint or several,
and any action in respect thereof, to which the
Telephone Company, or any such director, officer or
controlling person may become subject, under the Act or
otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or arises
out of, or is based upon, the omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements
therein not misleading, but in each case only to the
extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in
reliance upon and in conformity with information
furnished in writing to the Telephone Company through
the Representative by or on behalf of that Underwriter
specifically for use therein, and shall reimburse the
Telephone Company for any legal and other expenses
reasonably incurred by the Telephone Company or any such
director, officer or controlling person in investigating
or defending or preparing to defend against any such
loss, claim, damage, liability or action as such
expenses are incurred (but no more frequently than
annually). The foregoing indemnity agreement is in
addition to any liability which any Underwriter may
otherwise have to the Telephone Company or any of its
directors, officers or controlling persons.
(c) Promptly after receipt by an indemnified
party under this Paragraph 9 of notice of any claim or
the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made
against the indemnifying party under this Paragraph 9,
notify the indemnifying party in writing of the claim
or the commencement of that action, provided that the
failure to notify the indemnifying party shall not
relieve it from any liability which it may have to an
indemnified party otherwise than under Paragraph 9(a)
or 9(b). If any such claim or action shall be brought
against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party
shall be entitled to participate therein, and, to the
extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense
thereof with counsel satisfactory to the indemnified
party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense
of such claim or action, the indemnifying party shall
not be liable to the indemnified party under this
Paragraph 9 for any legal or other expenses
subsequently incurred by the indemnified party in
connection with the defense thereof other than
reasonable costs of investigation. If the indemnifying
party shall not elect to assume the defense of such
action, such indemnifying party will reimburse such
indemnified party for the reasonable fees and expenses
of any counsel retained by them. In the event that the
parties to any such action (including impleaded
parties) include both the Telephone Company and one or
more Underwriters and either (i) the indemnifying party
or parties and indemnified party or parties mutually
agree or (ii) representation of both the indemnifying
party or parties and the indemnified party or parties
by the same counsel is inappropriate under applicable
standards of professional conduct or in the opinion of
such counsel due to actual or potential differing
interests between them, then the indemnifying party
shall not have the right to assume the defense of such
action on behalf of such indemnified party and will
reimburse such indemnified party for the reasonable
fees and expenses of any counsel retained by them and
satisfactory to the indemnifying party, it being
understood that the indemnifying party shall not, 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, be
liable for the reasonable fees and expenses of more
than one separate firm of attorneys for all such
indemnified parties, which firm shall be designated in
writing by the Representative in the case of an action
in which one or more Underwriters or controlling
persons are indemnified parties and by the Telephone
Company in the case of an action in which the Telephone
Company or any of its directors, officers or
controlling persons are indemnified parties. The
indemnifying party or parties shall not be liable under
this Agreement with respect to any settlement made by
any indemnified party or parties without prior written
consent by the indemnifying party or parties to such
settlement.
(d) If the indemnification provided for in this
Paragraph 9 shall for any reason be unavailable to an
indemnified party under Paragraph 9(a) or 9(b) hereof
in respect of any loss, claim, damage or liability, or
any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or
action in respect thereof, in such proportion as is
appropriate to reflect the relative benefits received
by the Telephone Company, on the one hand, and the
Underwriters, on the other hand, from the offering of
the Underwritten Securities. If, however, this
allocation is not permitted by applicable law, then
each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in
respect thereof, in such proportion as shall be
appropriate to reflect the relative benefits received
by the Telephone Company, on the one hand, and the
Underwriters, on the other hand, from the offering of
the Underwritten Securities and the relative fault of
the Telephone Company, on the one hand, and the
Underwriters, on the other hand, with respect to the
statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable
considerations. The relative benefits received by the
Telephone Company, on the one hand, and the
Underwriters, on the other hand, with respect to such
offering shall be deemed to be in the same proportion
as the total net proceeds from the offering of the
Underwritten Securities (before deducting expenses)
received by the Telephone Company bear to the total
underwriting discounts and commissions received by the
Underwriters with respect to such offering. The
relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state
a material fact relates to information supplied by the
Telephone Company or the Underwriters, the intent of
the parties and their relative knowledge, access to
information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by
an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof,
referred to above in this Paragraph 9(d) shall be
deemed to include, for purposes of this Paragraph 9(d),
any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding
the provisions of this Paragraph 9(d), no Underwriter
shall be required to contribute any amount in excess of
the amount by which the total price at which the
Underwritten Securities underwritten by it and
distributed to the public were offered to the public
exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay
by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Paragraph
9(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) The agreements contained in this Paragraph 9
and the representations, warranties and agreements of
the Telephone Company in Paragraph 1 and Paragraph 8
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.
10. The obligations of the Underwriters under this
Agreement may be terminated by the Representative, in its
absolute discretion, by notice given to and received by the
Telephone Company prior to the delivery of and payment for
the Immediate Delivery Underwritten
Securities, if, during the period beginning on the date
hereof to and including the Delivery Date, (a) trading in
securities generally on the New York Stock Exchange, Inc. is
suspended or materially limited, or (b) a banking moratorium
is declared by either Federal or New York State authorities,
or (c) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis or the
declaration by the United States of war or a national
emergency the effect of which on the financial markets of
the United States is material and adverse and is such as to
make it, in the reasonable judgment of the Representative,
impracticable or inadvisable to market such Underwritten
Securities on the terms and in the manner contemplated by
the Prospectus, or (d) the Telephone Company shall have
received notice that any rating of any of the Telephone
Company's unsecured senior debt securities shall have been
lowered by any nationally recognized statistical rating
organization (as defined in Rule 15c3-1 under the Exchange
Act) or any such organization has publicly announced that it
has under surveillance or review, with possible negative
implications, the ratings of any of the Telephone Company's
unsecured senior debt securities, or (e) there shall have
occurred any change, or any development involving a
prospective change, in or affecting particularly the
business or properties of the Telephone Company or its
subsidiaries which, in the Representative's reasonable
judgment, materially impairs the investment quality of the
Underwritten Securities.
11. 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
Telephone Company contained herein, to performance by the
Telephone 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 the 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 by
the Commission or its staff as to the accuracy or
adequacy of any document incorporated by reference in
the Prospectus; any request of the Commission for
inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been
complied with; and after the date hereof the Telephone
Company shall not have filed with the Commission any
amendment or supplement to the Registration Statement or
the 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 Telephone Company on or prior to the
Delivery Date that the Registration Statement or the
Prospectus contains an untrue statement of a fact which
is material or omits to state a fact which is material
and is required to be stated therein or is necessary to
make the statements therein not misleading.
(c) All corporate proceedings and other legal
matters incident to the authorization, form and
validity of this Agreement, the Underwritten Securities
and the Indenture and the form of the Registration
Statement, the 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 Xxxxxxxx & Xxxxxxxx, counsel for the
Underwriters, and the Telephone Company shall have
furnished to such counsel all documents and information
that they may reasonably request to enable them to pass
upon such matters.
(d) The Vice President and General Counsel to
the Telephone Company shall have furnished to the
Representative his opinion addressed to the Underwriters
and dated the Delivery Date, as counsel, to the effect
that:
(i) the Telephone Company has been duly
incorporated and is validly existing as a
corporation in good standing under the laws of the
State of Missouri, with full corporate power and
authority to own its properties and conduct its
business as described in the Prospectus, and is
duly qualified to do business as a foreign
corporation and is in good standing under the laws
of each jurisdiction which requires such
qualification wherein it owns or leases properties
or conducts business, except where the failure to
so qualify would not have a material adverse effect
on the Telephone Company;
(ii) the Indenture has been duly authorized,
executed and delivered, has been duly qualified
under the Trust Indenture Act, and constitutes a
legal, valid and binding instrument enforceable
against the Telephone Company in accordance with
its terms (subject, as to enforcement of remedies,
to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other
similar laws of general applicability relating to
or affecting creditors' rights generally from time
to time in effect and to general principles of
equity);
(iii) to the best knowledge of such counsel,
there is no pending or threatened action, suit or
proceeding before any court or governmental agency,
authority, body or any arbitrator involving the
Telephone Company of a character required to be
disclosed in the Registration Statement which is
not adequately disclosed in the Prospectus, and
there is no franchise, contract or other document
of a character required to be described in the
Registration Statement or Prospectus, or to be
filed as an exhibit, which is not described or
filed as required; and the statements included or
incorporated by reference in the Prospectus
describing any legal proceedings or material
contracts or agreements relating to the Telephone
Company fairly summarize such matters; the
Underwritten Securities, the Indenture and any
Delayed Delivery Contracts conform to the
descriptions thereof contained under the following
(or comparable) captions of the Prospectus:
"Description of Debt Securities" and "Plan of
Distribution";
(iv) The Immediate Delivery Underwritten
Securities have been duly authorized, executed,
authenticated, issued and delivered and are valid
and legally binding obligations of the Telephone
Company entitled to the benefits of the Indenture;
(v) The Delayed Delivery Underwritten
Securities, if any, have been duly authorized and,
when executed, authenticated, issued and delivered
to, and paid for by, the respective purchasers
thereof in accordance with the Indenture and the
related Delayed Delivery Contracts, will be valid
and legally binding obligations of the Telephone
Company entitled to the benefits of the Indenture;
(vi) the Registration Statement and any
amendments thereto have become effective under the
Securities Act; to the best knowledge of such
counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued, no
proceedings for that purpose have been instituted
or threatened, and the Registration Statement, the
Prospectus and each amendment thereof or supplement
thereto as of their respective effective or issue
dates (other than the financial statements and
other financial and statistical information
contained therein as to which such counsel need
express no opinion) complied as to form in all
material respects with the applicable requirements
of the Securities Act, the Exchange Act and the
Trust Indenture Act and the respective rules and
regulations thereunder; and such counsel has no
reason to believe that the Registration Statement,
or any amendment thereof, at the time it became
effective or at the date of this Agreement or at
the Delivery Date, contained any untrue statement
of a material fact or omitted to state any material
fact required to be stated therein or necessary to
make the statements therein not misleading or that
the Prospectus, at the date of this Agreement or at
the Delivery Date, included any untrue statement of
a material fact or omitted to state a material fact
necessary to make the statements therein, in the
light of the circumstances under which they were
made, not misleading;
(vii) this Agreement and the Delayed Delivery
Contracts, if any, have been duly authorized,
executed and delivered by the Telephone Company;
(viii) no order, consent, approval,
authorization, registration or qualification of or
with any governmental agency or body having
jurisdiction over the Telephone Company or any of
its properties is required for the issue and sale
of the Underwritten Securities or the consummation
by the Telephone Company of the transactions
contemplated by this Agreement or the Indenture,
except such as have been obtained under the
Securities Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations
or qualifications as may be required under state
securities or Blue Sky laws in connection with the
sale and distribution of the Underwritten
Securities; and
(ix) neither the execution and delivery of the
Indenture, this Agreement or any Delayed Delivery
Contracts, the issue and sale of the Underwritten
Securities, nor the consummation of any other of
the transactions herein or therein contemplated nor
the fulfillment of the terms hereof or thereof will
conflict with, result in a breach of, or constitute
a default under, the charter or by-laws of the
Telephone Company or the terms of any indenture or
other agreement or instrument known to such counsel
and to which the Telephone Company is a party or by
which the Telephone Company or any of its assets is
bound, or any order or regulation known to such
counsel to be applicable to the Telephone Company
of any court, regulatory body, administrative
agency, governmental body or arbitrator having
jurisdiction over the Telephone Company.
In rendering such opinion, such counsel may rely, as to
the execution of the Indenture by the Trustee, upon a
certificate of the Trustee setting forth the facts as to
such execution.
In rendering such opinion, such counsel may also rely
(A) as to matters involving the application of laws of
any jurisdiction other than the State of Missouri, upon
the opinion of other counsel of good standing believed
to be reliable, provided that such counsel states in
such opinion that such counsel and the Representative
are justified in relying upon the opinion of such other
counsel, and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers
of the Telephone Company and public officials.
In rendering such opinion with respect to clause (viii)
above, insofar as it relates to regulatory authorities
in the states in which the Telephone Company operates,
such counsel may rely on the opinions of local counsel
satisfactory to such counsel.
(e) The Representative shall have received from
Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, such
opinion or opinions, dated the date hereof, with respect
to the issuance and sale of the Underwritten Securities,
the Indenture, the Registration Statement, the
Prospectus and other related matters as the
Representative may reasonably require, and the Telephone
Company shall have furnished to such counsel such
documents as they request for the purpose of enabling
them to pass upon such matters.
(f) The Telephone Company shall have furnished to
the Representative a certificate signed by its Chairman
of the Board or its President or a Vice President and
its Treasurer or an Assistant Treasurer stating that
after reasonable investigation and to the best of their
knowledge;
(i) the representations and warranties of the
Telephone Company in this Agreement are true and
correct in all material respects on and as of the
Delivery Date with the same effect as if made on
the Delivery Date; the Telephone Company has
complied with all the agreements and satisfied all
the conditions on its part to be performed or
satisfied as a condition to the obligation of the
Underwriters to purchase the Underwritten
Securities hereunder; and the conditions set forth
in Paragraphs 11(a) and 11(h) have been fulfilled;
(ii) as of the date of the Prospectus, the
Registration Statement and the Prospectus did not
include any untrue statement of a material fact and
did not omit to state a material fact required to
be stated therein or necessary to make the
statements therein not misleading; and
(iii) since the date of the most recent
financial statements included or incorporated by
reference in the Prospectus, there has been no
material adverse change in the condition (financial
or other), earnings, business or properties of the
Telephone Company and its subsidiaries, whether or
not arising from transactions in the ordinary
course of business, except as set forth in or
contemplated in the Prospectus.
(g) The Telephone Company shall have furnished
to the Representative (i) a letter of Ernst & Young LLP,
addressed to the Board of Directors of the Telephone
Company and the Underwriters and dated the later of the
effective date of the Registration Statement or the date
of the filing of the Telephone Company's latest Annual
Report on Form 10-K, of the type described in the
American Institute of Certified Public Accountants'
Statement on Auditing Standards No. 49 and covering such
financial statement items as counsel for the
Underwriters may reasonably have requested and (ii) a
letter of Ernst & Young, 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 and confirming in all
material respects the conclusions and findings set forth
in such prior letter.
(h) No order, consent, approval, authorization,
registration or qualification of or with any
governmental agency or body having jurisdiction over the
Telephone Company or any of its properties is required
for the issue and sale of the Underwritten Securities or
the consummation by the Telephone Company of the
transactions contemplated by this Agreement or the
Indenture, except such as have been, or will have been
prior to the Delivery Date, obtained under the Act and
the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Underwritten Securities by the Underwriters.
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 the
Representative.
12. If the Telephone 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 6 or Paragraphs 10(a) - (d) hereof), the
Telephone Company shall reimburse the Underwriters for the
reasonable fees and expenses of their counsel and for such
other out-of-pocket expenses as shall have been incurred by
them in connection with this Agreement and the proposed
purchase of Immediate Delivery Underwritten Securities and
the solicitation of any purchases of the Delayed Delivery
Underwritten Securities, and upon demand the Telephone
Company shall pay the full amount thereof to the
Representative. If this Agreement is terminated pursuant to
Paragraph 6 hereof by reason of the default of one or more
Underwriters or pursuant to Paragraphs 10(a) - (d) hereof,
the Telephone Company shall not be obligated to reimburse
any Underwriter on account of those expenses.
13. The Telephone 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
Telephone Company to the Underwriters shall be sufficient if
given in writing or by facsimile transmission confirmed
promptly in writing addressed to the Representative at its
address set forth in Schedule I hereto, and any notice by
the Underwriters to the Telephone Company shall be
sufficient if given in writing or by facsimile transmission
confirmed promptly in writing addressed to the Telephone
Company at Xxx Xxxx Xxxxxx, Xxxx 0000, Xx. Xxxxx, Xxxxxxxx
00000, Telecopy Number: (000) 000-0000, Attention of the
Vice President-Chief Financial Officer and Treasurer with a
copy to the Vice President-General Counsel and Secretary,
Xxx Xxxx Xxxxxx, Xxxx 0000, Xx. Xxxxx, XX 00000, Telecopy
Number: (000) 000-0000.
14. This Agreement shall be binding upon the
Underwriters, the Telephone 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 Telephone 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 9 hereof shall be deemed to be for the benefit of
directors of the Telephone Company, officers of the
Telephone Company who have signed the Registration Statement
and any person controlling the Telephone Company. Nothing
in this Agreement is intended or shall be construed to give
any person, other than the persons referred to in this
Paragraph 14, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision
contained herein.
15. For purposes of this Agreement, "business day" means
any day on which the New York Stock Exchange, Inc. is open
for trading.
16. This Agreement may be executed by the parties hereto
in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together
constitute one and the same instrument.
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF NEW YORK.
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 between the Telephone Company and the
several Underwriters.
Very truly yours,
SOUTHWESTERN XXXX TELEPHONE COMPANY
By: /s/ Xxxxx Xxxxxxxx
Title: Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By:/s/ Xxxxxxx Xxxxx
Title: Director
For itself and as Representative of the
several Underwriters named in Schedule II
to the foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated October 18, 1995.
Registration Statement No. 33-49967
Representative and Address: Xxxxxxx Xxxxx & Co.
Mr. Xxxxxx Xxxxxx
Mr. Xxxxxx Xxxxx
World Financial Center
000 Xxxxx Xxxxxx
North Tower - 00xx Xxxxx
Xxx Xxxx, XX 00000
Underwritten Securities:
Indenture dated as of February 1, 1985 as supplemented by
the First Supplemental Indenture dated as of June 1, 1991
from Southwestern Xxxx Telephone Company to The Bank of
New York, as Trustee (the "Indenture").
As used in this Underwriting Agreement, references to
"Underwritten Securities" shall be deemed to be separate
references to the 6.25% Notes (as hereinafter defined) and
the 7.20% Debentures (as hereinafter defined) each of
which constitutes a separate series of Securities under
the Indenture.
Designations: 6.25% Notes due October 15, 2002
("6.25% Notes")
7.20% Debentures due October 15, 2026
("7.20% Debentures")
Principal Amounts: 6.25% Notes: $150,000,000
7.20% Debentures: $300,000,000
Dates of Maturity: 6.25% Notes: October 15, 2002
7.20% Debentures: October 15, 2026
Interest Rates: 6.25% Notes: 6.25% per annum.
7.20% Debentures: 7.20% per annum.
In each case payable semi-annually on
each April 15 and October 15,
commencing April 15, 1996, to holders
of record at the close of business on
the preceding October 1 or April 1.
Purchase Prices: 6.25% Notes: 99.91% of the
principal amount.
7.20% Debentures: 99.875% of
the principal amount.
Plus, in each case, accrued
interest from October 15, 1995
to the date of delivery.
Redemption Provisions: The 6.25% Notes are not
redeemable prior to maturity.
The 7.20% Debentures are not
redeemable prior to October 15,
2005. On or after October 15,
2005 and prior to maturity, the
Telephone Company, at its
option, may redeem all or from
time to time any part of the
7.20% Debentures upon not less
than 30 days but not more than
60 days notice at the following
redemption prices (expressed in
percentages of the principal
amount) during the 12-month
periods beginning October 15.
Redemption
Year Price
--- ------
2005 103.5375%
2006 103.1838
2007 102.8300
2008 102.4763
2009 102.1225
2010 101.7688
2011 101.4150
2012 101.0613
2013 100.7075
2014 100.3538
2015 100.0000
and thereafter at 100% of the
principal amount thereof, in
each case together with accrued
interest to the redemption date.
Form and Authorized The 6.25% Notes and the 7.20%
Denominations: Debentures each will be issued
only in registered, book-entry
form in denominations of $1,000
and integral multiples thereof.
The 6.25% Notes and the 7.20%
Debentures each will be
represented by a global security
or securities deposited with, or
on behalf of, The Depository
Trust Company, and registered in
the name of Cede & Co., as
nominee for The Depository Trust
Company.
Delivery Date, Time 10:00 a.m. (New York time),
and Location: October 26, 1995, at the offices
of
Xxxxxxxx & Xxxxxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
Specified Funds for Immediately available funds.
Payment of Purchase Price:
The Delayed Delivery There are no Delayed Delivery
Contracts.
Contracts shall have
the following terms:
SCHEDULE II
Principal Principal
Amount of Amount of
Underwritten Underwritten
Name of the Underwriter 7.20%
6.25% Debentures
Notes
--------------------------- ------ ------------
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx $30,000,000 $60,000,000
Incorporated.
Bear, Xxxxxxx & Co. Inc. 30,000,000 60,000,000
Xxxxxxx, Sachs & Co. 30,000,000 60,000,000
Xxxxxx Xxxxxxx & Co. 30,000,000 60,000,000
Incorporated
Salomon Brothers Inc. 30,000,000 60,000,000
Total $150,000,000 $300,000,000
EXHIBIT A
SOUTHWESTERN XXXX TELEPHONE COMPANY
DELAYED DELIVERY CONTRACT
,199
Southwestern Xxxx Telephone Company
Xxx Xxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Dear Sirs:
The undersigned hereby agrees to purchase from
Southwestern Xxxx Telephone Company, a Missouri corporation
("the Telephone Company"),
and the Telephone Company hereby agrees to sell to the
undersigned,
$
principal amount of the Telephone Company's above-captioned
securities ("Securities"), offered by the Telephone 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 Telephone Company to the undersigned, and
the undersigned will accept delivery of such Securities and
will make payment to the Telephone Company of the purchase
price therefore at the office of The Bank of New York.
Payment will be by certified or official bank check payable in
next-day funds settled through the New York Clearing House, or
such other Clearing House as the Telephone Company may
designate, to or upon the order of the Telephone Company. The
Securities will be delivered in such authorized forms and
denominations and registered in such names as the undersigned
may designate by written or telegraphic communication
addressed to the Telephone Company not less than two full
business days prior to the Delivery Date or, if the
undersigned fails to make a timely designation in the
foregoing manner, in the form of one definitive fully
registered certificate representing the Securities in the
above principal amount, registered in the name of the
undersigned.
If any of the Securities are to be delivered to the
undersigned in bearer form, (i) the undersigned hereby
represents that it is not a U.S. person (or if it is a U.S.
person it is a qualified financial institution) and agrees
that it will not offer to sell such Securities, directly or
indirectly, to any U.S. person other than a qualified
financial institution and (ii) if the undersigned is a dealer,
that the undersigned also (A) represents that it has not
offered or sold and agrees that it will not offer, sell, or
deliver any such Securities within the United States or,
directly or indirectly, to any U.S. person other than a
qualified financial institution and is not purchasing any of
such Securities for the account of any such U.S. person, and
(B) will deliver to all purchasers of such Securities from it
a written confirmation, containing a statement to the effect
set forth in clauses (i) and (ii) above. As used herein,
"United States" means the United States of America (including
the States and the District of Columbia), its territories, its
possessions and all other areas subject to its jurisdiction;
"U.S. person" means a citizen or resident of the United
States, a corporation, partnership or other entity created or
organized in or under the laws of the United States or a
political subdivision thereof, or an estate or trust the
income of which is subject to United States Federal income
taxation regardless of its source; and "qualified financial
institution" means a financial institution (as defined in
Section 1.165-12(c)(1)(v) of the Treasury Department
regulations) that provides a written statement that it will
comply with Section 165(j)(3)(A), (B), or (C) of the Code and
the regulations thereunder. Delivery of Securities in bearer
form shall be made only upon receipt of a certificate manually
signed by the undersigned, containing substantially the
following:
"This is to certify that as of the date hereof (the
date of delivery of the Securities in bearer form), the
above-captioned Securities which are to be delivered to
the undersigned in bearer form are not being acquired by
or on behalf of a U.S. person, or for offer to resell or
for resale to a U.S. person or, if any beneficial owner of
the Securities is a U.S. person, such U.S. person is a
financial institution (as defined in Treasury Department
Regulations Section 1.165-12(c)(1)(v)) or acquiring
through a financial institution and that the Securities
are held by a financial institution that has agreed to
comply with the requirements of Section 165(j)(3)(A), (B),
or (C) of the Internal Revenue Code of 1986, and the
regulations thereunder. If the undersigned is a clearing
organization, the undersigned represents that the
certificate is based on statements provided to it by its
member organizations. As used herein, "United States"
means the United States of America (including the States
and the District of Columbia), its territories, its
possessions and all other areas subject to its
jurisdiction; "U.S. person" means a citizen or resident of
the United States, a corporation, partnership or other
entity created or organized in or under the laws of the
United States or a political subdivision thereof, or an
estate or trust the income of which is subject to United
States Federal income taxation regardless of its source;
and a "clearing organization" means an entity which is in
the business of holding obligations for member
organizations and transferring obligations among such
members by credit or debit to the account of a member
without the necessity of physical delivery of the
obligation. If the undersigned is a dealer, the
undersigned agrees to obtain a similar certificate from
each person entitled to delivery of any of the above-
captioned Securities in bearer form purchased from it.
However, if the undersigned has actual knowledge that the
information contained in such certificate is false, the
undersigned will not deliver a Security in temporary or
definitive bearer form to the person who signed such
certificate notwithstanding the delivery of such
certificate to the undersigned. The undersigned will be
deemed to have actual knowledge that the beneficial owner
is a U.S. person for this purpose if the undersigned has a
U.S. address for the beneficial owner of the Security."
This Contract will terminate and be of no further force
and effect after , , unless
(i) on or before such date it shall have been executed and
delivered by both parties hereto and (ii) the Telephone
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). The Telephone Company will mail or deliver to
the undersigned at its address set forth below a notice to
that effect, stating the date of the occurrence thereof,
accompanied by copies of the opinion of counsel for the
Telephone Company delivered to such Underwriters pursuant to
Paragraph 11(d) of the Underwriting Agreement.
The obligation of the undersigned to accept delivery of
and make payment for the Securities on the Delivery Date will
be subject to the condition that the Securities shall not, on
the Delivery Date, be an investment prohibited by the laws of
the jurisdiction to which the undersigned is subject, the
undersigned hereby representing that such an investment is not
so prohibited on the date hereof.
This Contract will inure to the benefit of and be binding
upon the parties hereto and their respective successors but
will not be assignable by either party hereto without the
written consent of the other.
This Contract may be executed by any of the parties hereto
in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together
constitute one and the same instrument.
It is understood that acceptance of any Delayed Delivery
Contract (as defined in said Underwriting Agreement) is in the
Telephone 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 Telephone Company, it is
requested that the Telephone 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 Telephone
Company and the undersigned when such counterpart is so mailed
or delivered.
Very truly yours,
By
Title
Address
Accepted as of , 199
SOUTHWESTERN XXXX TELEPHONE COMPANY
By
Title:
