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EXHIBIT 1-B
[FORM OF]
$
BELLSOUTH CAPITAL FUNDING CORPORATION
BELLSOUTH CORPORATION
YEAR % , DUE ,
UNDERWRITING AGREEMENT
[DATE]
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UNDERWRITING AGREEMENT
Date:
BellSouth Capital Funding Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
BellSouth Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
We (the "Manager") understand that BellSouth Capital Funding Corporation, a
Georgia corporation (the "Company"), proposes to issue and sell
$ aggregate principal amount of [Title of Securities] (the
"Offered Securities") which shall be entitled to the benefits of a Support
Agreement dated October 15, 1987, as amended as of August 1, 1992, between the
Company and BellSouth Corporation ("BellSouth"). The Offered Securities will be
issued pursuant to an indenture dated as of August 1, 1992 among the Company,
BellSouth and The Bank of New York (as successor to Wachovia Bank of Georgia,
N.A.).
Subject to the terms and conditions set forth herein or incorporated by
reference herein, the Company hereby agrees to sell and the underwriter or
underwriters named below (such underwriter or underwriters being herein called
the "Underwriters") agree to purchase, severally and not jointly, the principal
amounts of such Offered Securities set forth below opposite their names at
% of their principal amount and accrued interest, if any, from ,
to the date of payment and delivery:
PRINCIPAL
NAME AMOUNT
---- ---------
$
PRINCIPAL
NAME AMOUNT
---- ---------
$
------
Total......................... $
======
[The aggregate principal amount of Offered Securities to be purchased by
the several Underwriters may be reduced by the aggregate principal amount of
Offered Securities sold pursuant to delayed delivery contracts.]* The
Underwriters will pay for such Offered Securities (less any Offered Securities
sold pursuant to delayed delivery contracts) [by wire transfer of immediately
available funds] upon delivery thereof [through the book-entry facilities of The
Depository Trust Company] [at the offices of ] at 10:00 A.M.
(New York time) on [state date], or at such other time, not later than [state
date] as shall be designated by the Manager.
[Note: if any securities are to be sold pursuant to delayed delivery
contracts, disclosure would need to be added to the prospectus supplement.]
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The Offered Securities shall have the following terms:
Maturity:
Interest Rate:
Redemption Provisions:
Interest Payment Dates:
Initial Public Offering Price:
[other terms]:
[The commission to be paid to the Underwriters in respect of Offered
Securities purchased pursuant to delayed delivery contracts arranged by the
Underwriters shall be % of the principal amount thereof].*
All the provisions contained in the document entitled the BellSouth Capital
Funding Corporation Underwriting Agreement Standard Provisions (Debt) dated May
1, 1999, a copy of which you have previously received, are herein incorporated
by reference in their entirety and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in full
herein.
Very truly yours,
By:
------------------------------------
Acting severally on behalf of
itself and the several
Underwriters named above
Accepted:
BELLSOUTH CAPITAL FUNDING CORPORATION
By:
----------------------------------
Title:
BELLSOUTH CORPORATION
By:
----------------------------------
Title:
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* To be added only if delayed delivery contracts are contemplated.
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BELLSOUTH CAPITAL FUNDING CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
MAY 1, 1999
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From time to time, BellSouth Capital Funding Corporation, a Georgia
corporation (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of designated securities to the several underwriters
named therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Unless otherwise defined
herein, terms defined in the Underwriting Agreement are used herein as therein
defined.
I.
The Company proposes to issue, from time to time, debt securities (the
"Securities") which shall be entitled to the benefits of a Support Agreement
(the "Support Agreement") between the Company and BellSouth Corporation
("BellSouth") dated as of October 15, 1987, as amended as of August 1, 1992, and
will be issued pursuant to the provisions of an Indenture (the "Indenture")
dated as of August 1, 1992 among the Company, BellSouth and The Bank of New York
(as successor to Wachovia Bank of Georgia, N.A.), as Trustee. The Securities may
have varying designations, maturities, rates and times of payment of interest,
if any, selling prices, redemption terms, if any, and other specific terms.
The Company and BellSouth have filed with the Securities and Exchange
Commission (the "Commission") a registration statement including a prospectus
relating to the Securities and will file with the Commission a prospectus
supplement (the "Prospectus Supplement") specifically relating to a series of
Securities issued pursuant to the Indenture (the "Offered Securities") pursuant
to Rule 424 under the Securities Act of 1933 (the "Securities Act"). The term
Registration Statement means the registration statement as amended to the date
of the Underwriting Agreement. The term Basic Prospectus means the last dated
prospectus included in the Registration Statement. The term Prospectus means the
Basic Prospectus together with the Prospectus Supplement. The term Preliminary
Prospectus means a preliminary prospectus supplement, if any, specifically
relating to the Offered Securities, together with the Basic Prospectus. As used
herein, the terms "Registration Statement", "Basic Prospectus", "Prospectus" and
"Preliminary Prospectus" shall include in each case the material, if any,
incorporated by reference therein.
The term Underwriters' Securities means the Offered Securities to be
purchased by the Underwriters herein. The term Contract Securities means the
Offered Securities, if any, to be purchased pursuant to the delayed delivery
contracts referred to below.
II.
If the Prospectus provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Schedule I attached hereto ("Delayed Delivery
Contracts") but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as hereinafter defined), the Company will pay the Manager as
compensation, for the accounts of the Underwriters, the fee set forth in the
Underwriting Agreement in respect of the principal amount of Contract
Securities. The Underwriters will not have any responsibility in respect of the
validity or the performance of the Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount of Offered Securities to be purchased by each Underwriter shall
be reduced pro rata in proportion to the principal amount of Offered Securities
set forth opposite each Underwriter's name in the Underwriting Agreement, except
to the extent that the Manager determines that such reduction shall be otherwise
and so advises the Company.
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III.
The Company is advised by the Manager that the Underwriters propose to make
a public offering of the Underwriters' Securities as soon after this Agreement
is entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Underwriters' Securities are set forth in the Prospectus.
IV.
Payment for the Underwriters' Securities shall be made by certified or
official bank check or checks payable to the order of the Company in New York
Clearing House funds of by wire transfer of immediately available funds (as
specified in the Underwriting Agreement) at the time and place set forth in the
Underwriting Agreement, upon delivery to the Manager for the respective accounts
of the several Underwriters of the Underwriters' Securities registered in such
names and in such denominations as the Manager shall request in writing not less
than two full business days prior to the date of the delivery (through the
book-entry facilities of The Depository Trust Company, if specified in the
Underwriting Agreement). The time and date of such payment and delivery of the
Underwriters' Securities are herein referred to as the Closing Date.
V.
The several obligations of the Underwriters hereunder are subject to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall
have been instituted or threatened by the Commission, and there shall have
been no material adverse change and no development which, in the reasonable
judgment of the Manager, involves a substantial likelihood of a prospective
material adverse change in the condition of the Company or of BellSouth and
its subsidiaries, taken as a whole, from that set forth in the Registration
Statement and the Prospectus, and the Support Agreement shall remain a
valid and enforceable agreement in accordance with its terms.
(b) The Manager shall have received on the Closing Date an opinion (or
opinions) of counsel for the Company and BellSouth, who may be an employee
of BellSouth, dated the Closing Date, substantially to the effect set forth
in Exhibit A.
(c) The Manager shall have received on the Closing Date an opinion of
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated the Closing
Date, substantially to the effect set forth herein in Exhibit B.
(d) The Manager shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the Manager,
from Coopers & ▇▇▇▇▇▇▇ L.L.P., independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in or incorporated by reference
into the Registration Statement and the Prospectus.
(e) The Manager shall have received on the Closing Date a certificate
signed by the President, any Vice President or the Treasurer of the Company
and BellSouth, to the effect that the signers of such certificate have
examined the Registration Statement, the Prospectus and this Agreement and
that:
(i) the representations and warranties of the Company and BellSouth
herein are true and correct in all material respects on and as of the
Closing Date, and the Company and BellSouth have complied with all the
agreements and satisfied all the conditions on their part to be
performed or satisfied at or prior to the Closing Date;
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(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for that purpose have been
instituted or, to the Company's or BellSouth's knowledge, threatened by
the Commission; 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 and no development which, in the reasonable
judgment of the signer of such certificate, involves the substantial
likelihood of a prospective material adverse change in the condition of
BellSouth and its subsidiaries, taken as a whole, from that set forth in
the Registration Statement and the Prospectus.
VI.
In further consideration of the agreements of the Underwriters contained in
this Agreement, the Company and BellSouth covenant as follows:
(a) To deliver to the Manager two copies of the Registration Statement
as originally filed (including documents incorporated by reference therein)
and of all amendments thereto up to the time of closing. Promptly upon the
filing with the Commission of any amendment to the Registration Statement
or of any supplement to or amendment of the Prospectus, the Company will
deliver to the Representatives two copies thereof. The terms "supplement"
and "amendment" or "amend", as used in this Agreement, shall include all
documents subsequently filed by the Company pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act") which are deemed to be
incorporated by reference in the Prospectus from the date of filing such
documents in accordance with Form S-3.
(b) If, during such period after the first date of the public offering
of the Offered Securities as in the reasonable opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur or
a condition shall exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if it is necessary to amend or supplement the Prospectus
to comply with law, at the request of the Manager, forthwith to prepare and
furnish, at their own expense, to the Underwriters and to the dealers
(whose names and addresses the Manager shall furnish to the Company) to
which Offered Securities may have been sold by the Manager on behalf of the
Underwriters and to any other dealer upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus, as
so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law. If after the expiration of such period the
Company is requested by the Manager to so do, it will prepare and furnish
to the Underwriters, at the expense of the Underwriters and after a
reasonable time for the preparation thereof, such quantity as may
reasonably be required for the purposes contemplated by the Securities Act
of an amended or supplemented prospectus (but not further amendments or
supplements thereto) complying at the time of delivery with Section 10(a)
of the Securities Act, for use in connection with the distribution of the
Offered Securities; provided that if the Company has delivered such an
amended or supplemented prospectus pursuant to such request it shall not be
under any obligation to comply with any further such request.
(c) To use their best efforts to qualify the Offered Securities for
offer and sale under the applicable securities or Blue Sky laws of such
jurisdictions as the Manager shall reasonably request and to pay all
expenses (including fees and disbursements of counsel) in connection with
such qualification and in connection with the determination of the
eligibility of the Offered Securities for investment under the applicable
laws of such jurisdictions as the Manager may designate; provided, however
that the Company or BellSouth shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified.
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(d) To make generally available to the Company's security holders as
soon as practicable an earnings statement of BellSouth covering a
twelve-month period beginning after the date of the Underwriting Agreement,
which shall satisfy the provisions of Section 11(a) of the Securities Act
and the applicable rules and regulations thereunder.
(e) Not, without the prior consent of the Representatives, to offer or
to sell any of the Securities covered by the Registration Statement and
having a maturity of more than one year between the commencement of an
offering of Offered Securities and the related Closing Date.
VII.
(a) The Company and BellSouth represent and warrant to each Underwriter
that (i) each document, if any, filed or to be filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus complied or will comply when
so filed in all material respects with such Act and the rules and regulations
thereunder, (ii) each part of the Registration Statement (including the
documents incorporated by reference therein), filed with the Commission pursuant
to the Securities Act relating to the Offered Securities, when such part became
effective, did not contain any untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) each Preliminary Prospectus, if any,
filed pursuant to Rule 424 under the Securities Act complied when so filed in
all material respects with such Act and the applicable rules and regulations
thereunder, (iv) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations thereunder and
(v) the Registration Statement and the Prospectus at the date of the Prospectus
Supplement do not contain and, as further amended or supplemented, if
applicable, as of their respective dates, will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, except that
the representations and warranties set forth in this paragraph (a) do not apply
to statements or omissions in the Registration Statement, any Preliminary
Prospectus or the Prospectus based upon information furnished to the Company or
BellSouth in writing by any Underwriter expressly for use therein.
(b) The Company and BellSouth have each complied with all applicable
provisions of Section 1 of Laws of Florida, Chapter 92-198 relating to business
transactions with Cuba.
(c) The Company and BellSouth agree to indemnify and hold each Underwriter,
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Securities Act of Section 20 of the Exchange Act, harmless
from and against any and all losses, claims, damages and liabilities arising
because (i) any Preliminary Prospectus, if used prior to the effectiveness of
the Registration Statement relating to the Offered Securities, and if used as
amended by all amendments thereto which have been furnished to the Manager or to
such Underwriter, or (ii) the Registration Statement (or the Prospectus if used
within the period set forth in paragraph (b) of Article VI hereof and if used as
amended or supplemented by all amendments or supplements thereto which have been
furnished to the Manager or to such Underwriter) contained or is alleged to have
contained any untrue statement of a material fact or omitted or is alleged to
have omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however that the
Company and BellSouth will not be liable in any such case to the extent that any
such losses, claims, damages or liabilities were caused by any such untrue
statement or omission or alleged untrue statement or alleged omission made in
reliance upon information furnished to the Company and BellSouth herein or
otherwise in writing by or on behalf of any Underwriter specifically for use in
connection with the preparation of any Preliminary Prospectus, the Registration
Statement or the Prospectus or any amendment or supplement thereto, or were
caused by any statement in or omission from the Statement of Eligibility and
Qualification of the Trustee under the Indenture, provided that the indemnity
agreement with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any losses, claims, damages or liabilities to any
person if a copy of the Prospectus (as amended or supplemented by all amendments
or supplements thereto which have been furnished to the Manager or to such
Underwriter, but without documents incorporated by reference therein or
exhibits) shall not have been sent, mailed or given to such person, if required
by the Securities Act, at or prior to the written
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confirmation of the sale of such Securities to such person, and the loss, claim,
damage or liability of such Underwriter results from an untrue statement or
omission of a material fact contained in the Preliminary Prospectus which was
corrected in the Prospectus (as amended or supplemented).
(d) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, BellSouth, their respective directors or officers who
sign the Registration Statement, and any person controlling the Company or
BellSouth to the same extent as the foregoing indemnity from the Company and
BellSouth to the Underwriters but only in reference to information relating to
the Underwriters furnished or confirmed in writing by such Underwriter expressly
for use in connection with the preparation of any Preliminary Prospectus, the
Registration Statement, the Prospectus or any amendment or supplement thereto.
(e) The Company, BellSouth and each Underwriter agree that upon the
commencement of any action against it, the Company's or BellSouth's respective
directors or officers who sign the Registration Statement, or any person
controlling the Company, BellSouth or each Underwriter as aforesaid in respect
of which indemnity may be sought on account of any indemnity agreement contained
herein, it will promptly give written notice of the commencement thereof to the
party or parties against whom indemnity shall be sought, but the omission so to
notify such indemnifying party or parties of any such action shall not relieve
such indemnifying party or parties from any liability which it or they may have
to the indemnified party or parties otherwise than on account of such indemnity
agreement. In case such notice of any such action shall be so given, such
indemnifying party or parties shall be entitled to participate at its or their
own expense in the defense of such action, or, if it or they so elect, to assume
the defense of such action, and in the latter event such defense shall be
conducted by counsel chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall be defendant or
defendants in such action, and such defendant or defendants shall bear the fees
and expense of any additional counsel retained by them; but if the indemnifying
party or parties shall not elect to assume the defense of such action, such
indemnifying party or parties will reimburse such indemnified party or parties
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
either the Company or BellSouth 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 due to actual or potential
differing interests between them, then the indemnifying party or parties shall
not have the right to assume the defense of such action on behalf of such
indemnified party or parties and will reimburse such indemnified party or
parties for the reasonable fees and expenses of any counsel retained by them and
satisfactory to the indemnifying party or parties, it being understood that the
indemnifying party or parties 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 (in addition to local
counsel) for all such indemnified parties, which firm shall be designated in
writing by the Manager in the case of an action in which one or more
Underwriters of controlling persons are indemnified parties and by the Company
or BellSouth in the case of an action in which the Company, BellSouth or any of
their respective directors, officers or controlling persons are indemnified
parties. It is also understood that the fees and expenses referred to in the
immediately preceding sentence shall be reimbursed as they are incurred. 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 but if
settled with such consent or if there is a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such judgment or settlement. Any indemnifying
party shall, prior to agreeing to any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
make their best effort to obtain the unconditional release of such indemnified
party from all liability or claims rising out of the subject matter of such
proceeding.
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(f) If the indemnification provided for in subparagraph (c) and (d) of this
Article VII is unavailable to an indemnified party in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect primarily the relative benefits received by the Company
or BellSouth on the one hand and the Underwriters on the other from the offering
of the Securities and also to reflect where appropriate the relative fault of
the Company or BellSouth on the one hand and of the Underwriters on the other in
connection with the statements or omissions or alleged statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and BellSouth on the one hand and by the Underwriters on the other in
connection with the offering of the Securities shall be deemed to be in the same
proportion as the total gross proceeds from the offering of such Securities
(before deducting expenses) received by the Company bear to the total
commissions received by the Underwriters. The relative fault of the Company,
BellSouth and of the Underwriters shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, by BellSouth or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, BellSouth and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subparagraph (f) 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 subparagraph (f). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in this subparagraph (f) shall be deemed to include subject to the
limitations set forth above in this Article VII, any legal or other expenses
reasonably incurred by such indemnified party in connection with defending any
such action or claim. Notwithstanding the provisions of this subparagraph (f),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has been required to pay, otherwise than pursuant
to this Article VII, by reason of 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
subparagraph (f) are several in proportion to the respective principal amounts
of Offered Securities purchased by each such Underwriter and not joint. The
remedies provided in this Article VII are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any indemnified party at
law or in equity.
The indemnity and contribution agreements contained in this Article VII and
the representations and warranties of the Company and BellSouth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, BellSouth, their respective
directors or officers or any person controlling the Company or BellSouth and
(iii) acceptance of and payment for any of the Offered Securities.
VIII.
If any one or more Underwriters shall fail to purchase and pay for any of
the Offered Securities agreed to be purchased by such Underwriter or
Underwriters and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the principal amount of Offered Securities set
forth opposite their names in the Underwriting Agreement bears to the aggregate
principal amount of Securities set forth opposite the names of all the remaining
Underwriters) the Offered Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase;
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provided, however, that in the event that the aggregate principal amount of
Offered Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate principal amount of
Securities set forth in the Underwriting Agreement, the remaining Underwriters
shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Offered Securities, and if such nondefaulting Underwriters
do not purchase all the Offered Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter, the Company or BellSouth. In
the event of a default by any Underwriter as set forth in this Article VIII, the
Closing Date shall be postponed for such period, not exceeding seven days, as
the Manager shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company or BellSouth
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
IX.
This Agreement shall be subject to termination in the absolute discretion
of the Manager, by notice given to the Company and BellSouth, if prior to the
Closing Date (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iii) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or
other calamity or crisis the effect of which is to make it, in the judgment of
the Manager, impracticable to market the Offered Securities.
X.
If this Agreement shall be terminated by the Underwriters or any of them,
because of any failure or refusal on the part of the Company or BellSouth to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company or BellSouth shall be unable to perform their
respective obligations under this Agreement except pursuant to Article VIII
hereof, the Company or BellSouth will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Underwriters in connection with
the Offered Securities.
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signature thereto and
hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
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SCHEDULE I
DELAYED DELIVERY CONTRACT
[NOTE: WOULD NEED TO BE DESCRIBED IN PROSPECTUS SUPPLEMENT]
Dear Sirs:
The undersigned hereby agrees to purchase from BellSouth Capital Funding
Corporation, a Georgia corporation (the "Company"), and the Company agrees to
sell to the undersigned.
$
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principal amount of the Company's [state title of issue] (the "Securities"),
offered by the Company's Prospectus dated and Prospectus Supplement
dated , , receipt of copies of which are hereby acknowledged, at
a purchase price of % of the principal amount thereof plus accrued interest
and on the further terms and conditions set forth in this contract. The
undersigned does not contemplate selling Securities prior to making payment
therefor.
The undersigned will purchase from the Company Securities in the principal
amounts and on the delivery dates set forth below:
DELIVERY PRINCIPAL PLUS ACCRUED
DATE AMOUNT INTEREST FROM:
-------- --------- --------------
$
------------------------ ------------------------ ------------------------
$
------------------------ ------------------------ ------------------------
$
------------------------ ------------------------ ------------------------
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to purchase on
each Delivery Date shall be made to the Company or its order by [certified or
official bank check in New York Clearing House funds] [immediately available
funds] at the offices of at 10:00 A.M. (New York time) on the Delivery
Date, upon delivery to the undersigned [through the facilities of The Depository
Trust Company] of the Securities to be purchased by the undersigned on the
Delivery Date, [in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to the Delivery Date].
The obligation of the undersigned to take delivery of and make payment for
the Securities on the Delivery Date shall be subject to the conditions that (1)
the purchase of Securities to be made by the undersigned shall not at the time
of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the parties
thereto and their respective successors, but will not be assignable by either
party hereto without the prior written consent of the other.
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
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forth below. This will become a binding contract, as of the date first above
written, between the Company and the undersigned when such counterpart is so
mailed or delivered.
This contract shall be governed by and construed in accordance with the
laws of the State of New York.
Yours very truly,
--------------------------------------
(Purchaser)
By:
------------------------------------
--------------------------------------
(Title)
--------------------------------------
--------------------------------------
(Address)
Accepted:
BELLSOUTH CAPITAL FUNDING CORPORATION
By:
----------------------------------
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print).
TELEPHONE NO.
NAME (INCLUDING AREA CODE) DEPARTMENT
---- --------------------- ----------
------------------------ ------------------------ ------------------------
------------------------ ------------------------ ------------------------
------------------------ ------------------------ ------------------------
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EXHIBIT A
The opinion of counsel to the Company and BellSouth to be delivered
pursuant to Article V, paragraph (b) of the document dated May 1, 1999 and
entitled BellSouth Capital Funding Corporation Underwriting Agreement Standard
Provisions (Debt) shall be to the effect that:
(i) each of the Company and BellSouth has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
State of Georgia;
(ii) the Underwriting Agreement has been duly authorized, executed and
delivered by the Company and BellSouth;
(iii) the Indenture has been duly authorized, executed and delivered
by the Company and BellSouth and is a valid and binding agreement of the
Company and of BellSouth enforceable against them in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws of general application,
and except that the enforceability of the obligations of the Company and
BellSouth is subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding of equity or at law); the
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended;
(iv) the Support Agreement has been duly authorized, executed and
delivered by the Company and BellSouth and is a valid and binding agreement
of the Company and of BellSouth enforceable against them in accordance with
its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws of general
application, and except that the enforceability of the obligations of the
Company and BellSouth is subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding of
equity or at law);
(v) the Offered Securities have been duly authorized and, when
executed by the Company and authenticated by the Trustee in accordance with
the provisions of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting Agreement or
by the institutional investors, if any, pursuant to Delayed Delivery
Contracts, will be valid and binding obligations of the Company enforceable
against it in accordance with their terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or other
similar laws of general application, and except that the enforceability of
the obligations of the Company is subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding of
equity or at law); the Offered Securities will be entitled to the benefits
of the Indenture;
(vi) the performance of this Agreement will not contravene any
provision of applicable federal law or the law of the State of Georgia or
the articles of incorporation or by-laws of the Company or BellSouth or, to
the knowledge of such counsel, any agreement or other instrument binding
upon the Company or BellSouth, and no consent, approval or authorization of
any governmental body is required for the performance of this Agreement,
except that the offer and sale of the Offered Securities in certain
jurisdictions may be subject to the Blue Sky or securities laws of such
jurisdictions;
(vii) the statements in the Prospectus under the captions "Description
of Securities", "Description of [Offered Securities]", "Support Agreement",
"Plan of Distribution" and "Underwriting", and the statements in
BellSouth's Form 10-K Report under "Item 3 -- Legal Proceedings", insofar
as such statements constitute summaries of the documents and matters
referred to therein, fairly present the information called for with respect
to such documents and matters;
(viii) (1) each document filed pursuant to the Exchange Act (except as
to financial statements or schedules included therein, and except as to the
accuracy or validity of other numerical data included in the Registration
Statement and the Prospectus, as to which such counsel need not express any
conclusion) and incorporated by reference in the Prospectus complied when
so filed as to form in all material respects with the Exchange Act and all
applicable rules and regulations thereunder, and (2) the Registration
Statement and the Prospectus (except as to financial statements or
schedules
15
included therein, and except as to the accuracy or validity of other
numerical data included in the Registration Statement and the Prospectus,
as to which such counsel need not express any conclusion) comply as to form
in all material respects with the Securities Act and the applicable rules
and regulations thereunder, and
(ix) nothing has come to the attention of such counsel to cause him to
believe that (l) (except as to financial statements or schedules included
therein, and except as to the accuracy or validity of other numerical data
included in the Registration Statement and the Prospectus, as to which such
counsel need not express any conclusion) each part of the Registration
Statement (including the documents incorporated by reference therein) filed
with the Commission pursuant to the Securities Act, when such part became
effective, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading; or (2) (except as to financial
statements or schedules included therein, and except as to the accuracy or
validity of other numerical data included in the Registration Statement and
the Prospectus, as to which such counsel need not express any conclusion)
the Registration Statement and the Prospectus, as of the date of this
opinion, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
With respect to the matters set forth in (ix) above, such counsel may state
that the opinion is based upon his participation in the preparation of the
Registration Statement and the Prospectus and upon review and discussion of the
contents thereof, but, except for the statements in the Prospectus referred to
in (vii) above and in "Item 3 -- Legal Proceedings" of BellSouth's latest annual
report on Form 10-K incorporated by reference into the Prospectus, is without
independent check or verification except as specified. Insofar as the above
opinions relate to matters governed by the laws of the State of New York, the
opinion of said counsel may rely on opinion of counsel satisfactory to such
counsel.
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EXHIBIT B
The opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, to be
delivered pursuant to Article V, paragraph (c) of the document dated May 1, 1999
and entitled BellSouth Capital Funding Corporation Underwriting Agreement
Standard Provisions (Debt) shall be to the effect that:
(i) the Indenture has been duly authorized, executed and delivered by
the Company and BellSouth and is a valid and binding agreement of the
Company and of BellSouth enforceable against them in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws of general application,
and except that the enforceability of the obligations of the Company and
BellSouth is subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding of equity or at law); the
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended;
(ii) the Offered Securities have been duly authorized and, when
executed by the Company and authenticated by the Trustee in accordance with
the provisions of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting Agreement or
by the institutional investors, if any, pursuant to Delayed Delivery
Contracts, will be valid and binding obligations of the Company enforceable
against it in accordance with their terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or other
similar laws of general application, and except that the enforceability of
the obligations of the Company is subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding of
equity or at law); the Offered Securities will be entitled to the benefits
of the Indenture;
(iii) the Underwriting Agreement has been duly authorized, executed
and delivered by the Company and BellSouth and is a valid and binding
agreement of the Company and BellSouth, except as rights to indemnity and
contribution thereunder may be limited under applicable law;
(iv) the statements in the Prospectus under the captions "Description
of Securities", "Description of [Offered Securities]", "Plan of
Distribution" and "Underwriting", insofar as such statements constitute
summaries of the documents referred to therein, fairly present the
information called for with respect to such documents;
(v) the Registration Statement and the Prospectus, (except as to
financial statements or schedules included therein, and except as to the
accuracy or validity of other numerical data included in the Registration
Statement and the Prospectus, as to which such counsel need not express any
conclusion) comply as to form in all material respects with the Securities
Act and the applicable rules and regulations thereunder; and
(vi) nothing has come to the attention of such counsel to cause such
counsel to believe that (1) (except as to financial statements or schedules
included therein, and except as to the accuracy or validity or other
numerical data included in the Registration Statement and the Prospectus,
as to which such counsel need not express any conclusion) any part of the
Registration Statement (including the documents incorporated by reference
therein) filed with the Commission pursuant to the Securities Act, when
such part became effective, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; or (2) (except as
to financial statements or schedules included therein, and except as to the
accuracy or validity of other numerical data included in the Registration
Statement and the Prospectus, as to which such counsel need not express any
conclusion) the Registration Statement and the Prospectus, as of the date
of this opinion, contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
With respect to the matters set forth in (v) and (vi) above, such counsel
may state that the opinion is based upon such counsel's participation in the
preparation of the Registration Statement and the Prospectus and upon review and
discussion of the contents thereof, but, except for the statements in the
Prospectus referred to in (iv) above, is without independent check or
verification except as specified.
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Insofar as the above opinions relate to matters governed by the laws of the
State of Georgia, the opinion of said counsel may rely on opinion of counsel
satisfactory to such counsel.
2
