EXHIBIT 4.4
GTE SOUTHWEST INCORPORATED
AND
THE BANK OF NEW YORK
as Trustee
__________
SECOND SUPPLEMENTAL INDENTURE
Dated as of January 1, 1998
TO
INDENTURE
Dated as of November 15, 1993
_________
SECOND SUPPLEMENTAL INDENTURE, dated as of the 1st day of January, 1998
(herein called the "Second Supplemental Indenture"), between GTE SOUTHWEST
INCORPORATED, a corporation duly organized and existing under the laws of the
State of Delaware (hereinafter referred to as the "Company"), and THE BANK OF
NEW YORK, a banking corporation duly organized and existing under the laws of
the State of New York (hereinafter referred to as the "Trustee") (as successor
trustee to NationsBank of Georgia, National Association), as Trustee under the
Indenture dated as of November 15, 1993, between the Company and the Trustee (as
amended and supplemented by the First Supplemental Indenture dated as of
December 6, 1995, hereinafter referred to as the "Original Indenture").
Capitalized terms used in this Second Supplemental Indenture and not otherwise
defined herein shall have the meanings set forth in the Original Indenture.
WHEREAS, in accordance with Section 9.01(c) of the Original Indenture, the
Company and the Trustee may enter into supplemental indentures to the Original
Indenture without the consent of the Securityholders to cure any ambiguity or to
correct or supplement any provision which may be defective or inconsistent with
the Original Indenture or any supplemental indenture, or to make such other
provisions in regard to matters or questions arising under the Original
Indenture as shall not be inconsistent with the provisions of the Original
Indenture and not adversely affect the interests of the holders of the
Securities of any series; and
WHEREAS, the Company desires to amend the Original Indenture in accordance
with Section 9.01(c) and has determined that the requirements of Section 9.01(c)
have been satisfied and has requested the Trustee to join with it in the
execution and delivery of this Second Supplemental Indenture; all requirements
necessary to make this Second Supplemental Indenture a valid instrument, in
accordance with its terms, have been met; and the execution and delivery thereof
have been in all respects duly authorized;
NOW, THEREFORE, for good and valuable consideration the sufficiency of
which is hereby recognized, the Company covenants and agrees with the Trustee as
follows:
ARTICLE ONE
AMENDMENTS TO TERMS OF THE INDENTURE
Section 1.01 CERTAIN DEFINITIONS. The Company and Trustee hereby amend
Section 1.01 of the Original Indenture pursuant to Section 9.01(c) of the
Original Indenture to add the following definitions in alphabetical order:
"Depository:
The term "Depository" shall mean, with respect to Securities of any series
for which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Securities and Exchange Act of 1934, as amended, or other applicable statute or
regulation, which, in each case, shall be designated by the Company pursuant to
either Section 2.01 or 2.11."
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and
"Global Security:
The term "Global Security" shall mean, with respect to any series of
Securities, one or more Securities executed by the Company and authenticated and
delivered by the Trustee to the Depository or pursuant to the Depository's
written instruction (if acceptable to the Trustee) held by the Trustee as
custodian for the Depository, all in accordance with this Indenture, which shall
be registered in the name of the Depository or its nominee."
Section 1.02 TERMS OF THE SECURITIES. The Company and Trustee hereby
amend Section 2.01 of the Original Indenture pursuant to Section 9.01(c) of the
Original Indenture to add a new paragraph (9) to read as follows:
"(9) whether the Securities of the series are issuable as a Global
Security and, in such case, the identity of the Depository for such series; and"
and to renumber the existing paragraph (9) as paragraph (10).
Section 1.03 EXCHANGE OF SECURITIES. The Company and Trustee hereby amend
Section 2.05 of the Original Indenture pursuant to Section 9.01(c) of the
Original Indenture to insert a new paragraph at the end of Section 2.05 which
reads as follows:
"The provisions of this Section 2.05 are, with respect to any Global
Security, subject to Section 2.11 hereof."
Section 1.04 GLOBAL SECURITIES. The Company and Trustee hereby amend
Article II of the Original Indenture pursuant to Section 9.01(c) of the Original
Indenture to insert a new Section 2.11 at the end of Article II which reads as
follows:
"Section 2.11 (a) If the Company shall establish pursuant to Section
2.01 that the Securities of a particular series are to be issued as a
Global Security, then the Company shall execute and the Trustee shall, in
accordance with Section 2.04, authenticate and deliver, a Global Security
which (i) shall represent, and shall be denominated in an amount equal to
the aggregate principal amount of, all of the Outstanding Securities of
such series, (ii) shall be registered in the name of the Depository or its
nominee, (iii) shall be delivered by the Trustee to the Depository or
pursuant to the Depository's written instruction or (if acceptable to the
Trustee) held by the Trustee as custodian for the Depository, and (iv)
shall bear a legend substantially to the following effect: 'Except as
otherwise provided in Section 2.11 of the Indenture, this Security may be
transferred, in whole but not in part, only to another nominee of the
Depository or to a successor Depository or to a nominee of such successor
Depository'.
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(b) Notwithstanding the provisions of Section 2.05, the Global
Security of a series may be transferred, in whole but not in part and in
the manner provided in Section 2.05, only to another nominee of the
Depository for such series, or to a successor Depository for such series
selected or approved by the Company or to a nominee of such successor
Depository.
(c) If at any time the Depository for a series of Securities notifies
the Company that it is unwilling or unable to continue as Depository for
such series or if at any time the Depository for such series shall no
longer be registered or in good standing under the Securities Exchange Act
of 1934, as amended, or other applicable statute or regulation and a
successor Depository for such series is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, this Section 2.11 shall no longer be
applicable to the Securities of such series and the Company will execute,
and subject to Section 2.05, the Trustee will authenticate and deliver,
Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such
Global Securities. In addition, the Company may at any time determine that
the Securities of any series shall no longer be represented by a Global
Security and that the provisions of this Section 2.11 shall no longer apply
to the Securities of such series. In such event the Company will execute
and subject to Section 2.05, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will authenticate
and deliver Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security of such series in
exchange for such Global Security. Upon the exchange of the Global
Security for such Securities in definitive registered form without coupons,
in authorized denominations, the Global Security shall be canceled by the
Trustee. Such Securities in definitive registered form issued in exchange
for the Global Security pursuant to this Section 2.11(c) shall be
registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the Depository for delivery to the persons in
whose names such Securities are so registered."
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ARTICLE TWO
MISCELLANEOUS
Section 2.01 EFFECTIVENESS OF PROVISIONS. The provisions of this Second
Supplemental Indenture shall be effective only with respect to series of
Securities issued after the date hereof.
Section 2.02 EXECUTION OF SUPPLEMENTAL INDENTURE. This Second
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this Second Supplemental Indenture forms a part thereof.
Section 2.03 CONFLICT WITH TRUST INDENTURE ACT. If and to the extent that
any provision hereof limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, as amended,
such imposed duties shall control.
Section 2.04 SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Second Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 2.05 SEPARABILITY CLAUSE. In case any one or more of the
provisions contained in this Second Supplemental Indenture, the Original
Indenture or in the Securities of any series shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Second
Supplemental Indenture, the Original Indenture or of such Securities, but this
Second Supplemental Indenture, the Original Indenture and such Securities shall
be construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.
Section 2.06 BENEFITS OF SECOND SUPPLEMENTAL INDENTURE. Nothing in this
Second Supplemental Indenture or in the Original Indenture, express or implied,
shall give to any person, other than the parties hereto and their successors
hereunder and the Securityholders (to the extent specified herein or therein),
any benefit or any legal or equitable right, remedy or claim under this Second
Supplemental Indenture.
Section 2.07 GOVERNING LAW. This Second Supplemental Indenture shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State.
Section 2.08 EXECUTION AND COUNTERPARTS. This Second Supplemental
Indenture may be executed in any number of counterparts, each of which shall be
an original; but such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
GTE SOUTHWEST INCORPORATED
By
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Title:
Attest:
By
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Assistant Secretary
THE BANK OF NEW YORK
as TRUSTEE
By
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Title:
Attest:
By
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Title:
