Exhibit 1.1
GTE SOUTHWEST INCORPORATED
PURCHASE AGREEMENT
GTE Southwest Incorporated, a Delaware corporation (the "Company"),
proposes to issue and sell $___,000,000 aggregate principal amount of its ___%
Debentures, Series _, Due ____ (the "New Debentures"). Subject to the terms and
conditions set forth or incorporated by reference herein, the Company agrees to
sell and the purchaser or purchasers named in Schedule A attached hereto (the
"Purchasers") agree to purchase the New Debentures at __% of their principal
amount, plus accrued interest from ______________ to the date of payment for the
New Debentures and delivery thereof. Interest on the New Debentures will be
payable semi-annually on ___________ and ___________, commencing _________. The
New Debentures will be reoffered to the public at ____% of their principal
amount.
All the provisions contained in the Company's Standard Purchase
Agreement Provisions (January 1998 Edition) (the "Standard Purchase Agreement
Provisions") annexed hereto shall be deemed to be a part of this Purchase
Agreement to the same extent as if such provisions had been set forth in full
herein.
REDEMPTION PROVISIONS:
[The New Debentures will not be redeemable prior to maturity.]
OR
[The New Debentures will not be redeemable prior to _____.
Thereafter, the New Debentures will be redeemable on not less than 30 nor more
than 60 days' notice given as provided in the Indenture, as a whole or in part,
at the option of the Company at the redemption price set forth below. The
"initial regular redemption price" will be the initial public offering price as
defined below plus the rate of interest on the New Debentures. The redemption
price during the twelve month period beginning ________ and during the twelve
month periods beginning on each ____________ thereafter through the twelve month
period ended ____________ will be determined by reducing the initial regular
redemption price by an amount determined by multiplying (a) 1/_ of the amount by
which such initial regular redemption price exceeds 100% by (b) the number of
such full twelve month periods which shall have elapsed between ___________ and
the date fixed for redemption; and thereafter the redemption prices during the
twelve month periods beginning ____________ shall be 100%; provided, however,
that all such prices will be specified to the nearest 0.01% or if there is no
nearest 0.01%, then to the next higher 0.01%.
For the purpose of determining the redemption prices of the New
Debentures, the initial public offering price of the New Debentures shall be the
price, expressed in percentage of principal amount (exclusive of accrued
interest), at which the New Debentures are to be initially offered for sale to
the public; if there is not a public offering of the New Debentures, the
initial public offering price of the New Debentures shall be deemed to be the
price, expressed in percentage of principal amount (exclusive of accrued
interest), to be paid to the Company by the Purchasers.]
-2-
CLOSING:
The Purchasers agree to pay for the New Debentures, at the option of
the Company, by certified or official bank check or checks or by wire transfer
in each case in same day funds, upon delivery of such New Debentures at 10:00
A.M. (New York City time) on _____________ (the "Closing Date") or at such other
time, not later than the seventh full business day thereafter, as shall be
agreed upon by the Company and the Purchasers or the firm or firms designated as
the representative or representatives, as the case may be, of the Purchasers
(the "Representative"). The Company shall advise the Representative not later
than the business day immediately preceding the Closing Date of its decision
whether to accept payment for the New Debentures by certified bank check or by
wire transfer and, if the Company chooses to accept payment by wire transfer,
the Company shall provide the Representative on such date immediately preceding
the Closing Date with the appropriate wire transfer instructions.
DENOMINATION OF THE NEW DEBENTURES:
[The New Debentures shall be in the form of temporary or definitive
fully-registered New Debentures in denominations of One Thousand Dollars
($1,000) or any integral multiple thereof, registered in such names as the
Purchasers or the Representative shall request not less than two business days
before the Closing Date. The Company agrees to make the New Debentures
available to the Purchasers or the Representative for inspection at the office
of The Bank of New York, New York, New York or The Depository Trust Company, New
York, New York, at least twenty-four hours prior to the time fixed for the
delivery of the New Debentures on the Closing Date.]
OR
[The New Debentures shall be in the form of one or more Global
Debentures which shall represent, and shall be denominated in an amount equal to
the aggregate principal amount of, the New Debentures and shall be registered in
the name of The Depository Trust Company or its nominee. The Company agrees to
make the New Debentures available to the Purchasers or the Representative for
inspection at the office of The Bank of New York, New York, New York or The
Depository Trust Company, New York, New York, at least twenty-four hours prior
to the time fixed for the delivery of the New Debentures on the Closing Date.]
RESALE:
[The Purchasers represent that they intend to resell the New
Debentures, and therefore the provisions applicable to Reselling Purchasers in
the Standard Purchase Agreement Provisions will be applicable.]
OR
[The Purchasers represent that they do not intend to resell the New
Debentures, and therefore the provisions applicable to Reselling Purchasers in
the Standard Purchase Agreement Provisions will not be applicable.]
-3-
In witness whereof, the parties have executed this Purchase Agreement
this _____ day of __________, _____.
[Names of Purchasers or
Representative]
By: ___________________________
Title:
GTE SOUTHWEST INCORPORATED
By: ___________________________
Vice President
SCHEDULE A
The names of the Purchasers and the principal amount of New Debentures
which each respectively offers to purchase are as follows:
Principal
Amount
of New
Name Debentures
---- -----------
$___,000,000
______________
Total........................ $___,000,000
GTE SOUTHWEST INCORPORATED
STANDARD PURCHASE AGREEMENT PROVISIONS
(January 1998 Edition)
GTE Southwest Incorporated, a Delaware corporation (the "Company"),
may enter into one or more purchase agreements providing for the sale of
debentures to the purchaser or purchasers named therein (the "Purchasers"). The
standard provisions set forth herein will be incorporated by reference in any
such purchase agreement ("Purchase Agreement"). The Purchase Agreement,
including these Standard Purchase Agreement Provisions incorporated therein by
reference, is hereinafter referred to as "this Agreement". Unless otherwise
defined herein, terms used in this Agreement that are defined in the Purchase
Agreement have the meanings set forth therein.
I. SALE OF THE DEBENTURES
The Company proposes to issue one or more series of debentures
pursuant to the provisions of an Indenture dated as of November 15, 1993, as
amended and supplemented by the First Supplemental Indenture dated as of
December 6, 1995 and the Second Supplemental Indenture dated as of January 1,
1998 (as amended and supplemented, the "Indenture"), between the Company and The
Bank of New York, as successor trustee to NationsBank of Georgia, National
Association (the "Trustee"). In a supplemental indenture to the Indenture, a
resolution of the Board of Directors of the Company or an officers' certificate
pursuant to a supplemental indenture or board resolution specifically
authorizing each new series of debentures, the Company will designate the title
of each new series of debentures, and the aggregate principal amount, date or
dates of maturity, dates for payment and rate of interest, redemption dates,
prices, obligations and restrictions, if any, and any other terms with respect
to each such series.
The Company has filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"),
registration statement No. 33-64795 relating to $300,000,000 of the Company's
debentures registered thereunder (the amount remaining unsold thereunder, from
time to time, is hereinafter referred to as the "Debentures"), including a
prospectus which relates to the Debentures, and has filed with, or transmitted
for filing to, the Commission (or will promptly after the sale so file or
transmit for filing) a prospectus supplement specifically relating to a
particular series of Debentures (such particular series being hereinafter
referred to as the "New Debentures") pursuant to Rule 424(b) under the Act
("Rule 424(b)"). The term "Registration Statement" means the registration
statement referred to herein, as amended to the date of the Purchase Agreement.
The term "Basic Prospectus" means the prospectus relating to the Debentures
included in the Registration Statement. The term "Prospectus" means the Basic
Prospectus together with the prospectus supplement specifically relating to the
New Debentures, as filed with, or transmitted for filing to, the Commission
pursuant to Rule 424(b). As used herein, the terms "Registration Statement",
"Basic Prospectus" and "Prospectus" shall include in each case the material, if
any, incorporated by reference therein.
II. PURCHASERS' REPRESENTATIONS AND RESALE
Each Purchaser represents and warrants that information furnished in
writing to the Company expressly for use with respect to the New Debentures will
not contain any untrue statement of a material fact and will not omit any
material fact in connection with such information necessary to make such
information not misleading.
-2-
If the Purchasers advise the Company in the Purchase Agreement that
they intend to resell the New Debentures, the Company will assist the Purchasers
as hereinafter provided. The terms of any such resale will be set forth in the
Prospectus. The provisions of Paragraphs C and D of Article VI and Articles
VIII, IX and X of this Agreement apply only to Purchasers that have advised the
Company of their intention to resell the New Debentures ("Reselling
Purchasers"). All other provisions apply to any Purchaser including a Reselling
Purchaser.
III. CLOSING
The closing will be held at the office of GTE Service Corporation, 0xx
Xxxxx, Xxx Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 on the Closing Date.
Concurrent with the delivery of the New Debentures to the Purchasers or to the
Representative for the account of each Purchaser, payment of the full purchase
price of the New Debentures shall be made, at the option of the Company, by
certified or official bank check or checks in same day funds, payable to the
Company or its order, at The Bank of New York, Attention: Corporate Trust
Department, or by wire transfer in same day funds to The Bank of New York for
the account of the Company. Upon receipt of such check or wire transfer by The
Bank of New York, such check or wire transfer shall be deemed to be delivered at
the closing.
IV. CONDITIONS TO PURCHASERS' OBLIGATIONS
The respective obligations of the Purchasers hereunder are subject to
the following conditions:
(A) The Registration Statement shall have become effective and no
stop order suspending the effectiveness of the Registration Statement shall be
in effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; since the latest date as of which information is
given in the Registration Statement, there shall have been no material adverse
change in the business, business prospects, properties, financial condition or
results of operations of the Company; and the Purchasers or the Representative
shall have received on the Closing Date the customary form of compliance
certificate, dated the Closing Date and signed by the President or a Vice
President of the Company, including the foregoing. The officer executing such
certificate may rely upon the best of his or her knowledge as to proceedings
pending or threatened.
(B) The Purchasers or the Representative shall have received on the
Closing Date an opinion of Xxxxxxx X. Xxxxx, Esq., Vice President-General
Counsel of the Company, or other counsel to the Company satisfactory to the
Purchasers and counsel to the Purchasers, dated the Closing Date, substantially
in the form set forth in Exhibit A hereto.
(C) The Purchasers or the Representative shall have received on the
Closing Date an opinion of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the
Purchasers, dated the Closing Date, substantially in the form set forth in
Exhibit B hereto.
(D) The Purchasers or the Representative shall have received on the
Closing Date a letter from Xxxxxx Xxxxxxxx LLP, independent public accountants
for the Company, dated as of the Closing Date, to the effect set forth in
Exhibit C hereto.
-3-
V. CONDITIONS TO COMPANY'S OBLIGATIONS
The obligations of the Company hereunder are subject to the following
conditions:
(A) The Registration Statement shall have become effective and no
stop order suspending the effectiveness of the Registration Statement shall be
in effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission.
(B) The Company shall have received on the Closing Date the full
purchase price of the New Debentures purchased hereunder.
VI. COVENANTS OF THE COMPANY
In further consideration of the agreements contained herein of the
Purchasers, the Company covenants to the several Purchasers as follows:
(A) To furnish to the Purchasers or the Representative a copy of the
Registration Statement including materials, if any, incorporated by reference
therein and, during the period mentioned in (C) below, to supply as many copies
of the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto as the Purchasers or the Representative may
reasonably request. The terms "supplement" and "amendment" or "amend" as used
in this Agreement shall include all documents filed by the Company with the
Commission subsequent to the effective date of the Registration Statement, or
the date of the Basic Prospectus, as the case may be, pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), which are deemed to be
incorporated by reference therein.
(B) Before amending or supplementing the Registration Statement or
the Prospectus with respect to the New Debentures, to furnish to any Purchaser
or the Representative, and to counsel for the Purchasers, a copy of each such
proposed amendment or supplement.
The covenants in Paragraphs (C) and (D) apply only to Reselling
Purchasers:
(C) If in the period after the first date of resale of the New
Debentures during which, in the opinion of counsel for the Reselling Purchasers,
the Prospectus is required by law to be delivered, any event shall occur as a
result of which it is necessary to amend or supplement the Prospectus in order
to make a statement therein, in light of the circumstances when the Prospectus
is delivered to a subsequent purchaser, not materially misleading, or if it is
otherwise necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense (unless such amendment
shall relate to information furnished by the Purchasers or the Representative by
or on behalf of the Purchasers in writing expressly for use in the Prospectus),
to the Reselling Purchasers, the number of copies requested by the Reselling
Purchasers or the Representative of either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in light of the circumstances when the Prospectus is
delivered to a subsequent purchaser, be misleading or so that the Prospectus
will comply with law.
-4-
(D) To use its best efforts to qualify the New Debentures for offer
and sale under the securities or Blue Sky laws of such jurisdictions as the
Purchasers or the Representative shall reasonably request and to pay all
expenses (including fees and disbursements of counsel) in connection therewith;
provided, however, that the Company, in complying with the foregoing provisions
of this paragraph, shall not be required to qualify as a foreign company or to
register or qualify as a broker or dealer in securities in any jurisdiction or
to consent to service of process in any jurisdiction other than with respect to
claims arising out of the offering or sale of the New Debentures, and provided
further that the Company shall not be required to continue the qualification of
the New Debentures beyond one year from the date of the sale of the New
Debentures.
VII. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the several Purchasers that (i)
each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Basic Prospectus or the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act and the
rules and regulations thereunder, (ii) each part of the Registration Statement
filed with the Commission pursuant to the Act relating to the New Debentures,
when such part became effective, did 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, (iii) on the effective
date of the Registration Statement, the date the Prospectus is filed pursuant to
Rule 424(b) and at all times subsequent to and including the Closing Date, the
Registration Statement and the Prospectus, as amended or supplemented, if
applicable, complied or will comply in all material respects with the Act and
the applicable rules and regulations thereunder, (iv) on the effective date of
the Registration Statement, the Registration Statement did not contain, and as
amended or supplemented, if applicable, will not contain, any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading, and on the date the Prospectus, or any
amendment or supplement thereto, is filed pursuant to Rule 424(b) and on the
Closing Date, the Prospectus will not 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; except that these representations and warranties do not apply to
statements or omissions in the Registration Statement or the Prospectus based
upon information furnished to the Company by any Purchaser or the Representative
by or on behalf of any Purchaser in writing expressly for use therein or to
statements or omissions in the Statement of Eligibility of the Trustee under the
Indenture, (v) the consummation of any transaction herein contemplated will not
result in a breach of any of the terms of any agreement or instrument to which
the Company is a party, and (vi) the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended.
-5-
VIII. INDEMNIFICATION
The Company agrees to indemnify and hold harmless each Reselling
Purchaser and each person, if any, who controls such Reselling Purchaser within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, the Basic Prospectus or the Prospectus (if used
within the period set forth in Paragraph (C) of Article VI hereof, and as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are based upon any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished to the
Company by any Reselling Purchaser or the Representative by or on behalf of any
Reselling Purchaser in writing expressly for use therein or by any statement or
omission in the Statement of Eligibility of the Trustee under the Indenture.
The foregoing agreement, insofar as it relates to the Prospectus, shall not
inure to the benefit of any Reselling Purchaser (or to the benefit of any person
controlling such Reselling Purchaser) on account of any losses, claims, damages
or liabilities arising from the sale of any New Debentures by said Reselling
Purchaser to any person if a copy of the Prospectus (as amended or supplemented,
if prior to distribution of the Prospectus to the Reselling Purchaser, the
Company shall have made any supplements or amendments which have been furnished
to said Reselling Purchaser) shall not have been sent or given by or on behalf
of such Reselling Purchaser to such person at or prior to the written
confirmation of the sale of the New Debentures to such person and such statement
or omission is cured in the Prospectus.
Each Reselling Purchaser agrees to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and any
person controlling the Company to the same extent as the foregoing indemnity
from the Company to each Reselling Purchaser, but only with reference to
information relating to said Reselling Purchaser furnished to the Company in
writing by the Reselling Purchaser or the Representative by or on behalf of said
Reselling Purchaser expressly for use in the Registration Statement or the
Prospectus.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person or persons against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
(provided, however, that if such indemnified party shall object to the selection
of counsel after having been advised by such counsel that there may be one or
more legal defenses available to the indemnified party which are different from
or additional to those available to the indemnifying party, the indemnifying
party shall designate other counsel reasonably satisfactory to the indemnified
party) and the indemnifying party shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
-6-
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but if settled
with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in this Article VIII is
unavailable to an indemnified party under the first or second paragraph hereof
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Reselling Purchasers on the other from
the offering of the New Debentures or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Reselling Purchasers on the other in connection with the statement or omission
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Reselling Purchasers on the other in connection
with the offering of the New Debentures shall be deemed to be in the same
proportion as the total net proceeds from the offering of the New Debentures
received by the Company bear to the total commissions, if any, received by all
of the Reselling Purchasers in respect thereof. If there are no commissions
allowed or paid by the Company to the Reselling Purchasers in respect of the New
Debentures, the relative benefits received by the Reselling Purchasers in the
preceding sentence shall be the difference between the price received by such
Reselling Purchasers upon resale of the New Debentures and the price paid for
the New Debentures pursuant to the Purchase Agreement. The relative fault of
the Company on the one hand and of the Reselling Purchasers on the other 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 or by the
Reselling Purchasers and the parties' relative intent, 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
losses, claims, damages and liabilities referred to in this Article VIII shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. 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.
-7-
IX. SURVIVAL
The indemnity and contribution agreements contained in Article VIII
and the representations and warranties of the Company contained in Article VII
of this Agreement shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by any
Reselling Purchaser or on behalf of any Reselling Purchaser or any persons
controlling any Reselling Purchaser and (iii) acceptance of and payment for any
of the New Debentures.
X. TERMINATION BY RESELLING PURCHASERS
At any time prior to the Closing Date this Agreement shall be subject
to termination in the absolute discretion of the Reselling Purchasers, by notice
given to the Company, if (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, (iii) minimum prices shall have
been established on the New York Stock Exchange by Federal or New York State
authorities or (iv) any outbreak or material escalation of hostilities involving
the United States or declaration by the United States of a national emergency or
war or other calamity or crisis shall have occurred, the effect of any of which
is such as to make it impracticable or inadvisable to proceed with the delivery
of the New Debentures on the terms and in the manner contemplated by the
Prospectus.
XI. TERMINATION BY PURCHASERS
If this Agreement shall be terminated by the Purchasers because of any
failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason (other
than those set forth in Article V) the Company shall be unable to perform its
obligations under this Agreement, the Company will reimburse the Purchasers for
all out-of-pocket expenses (including the fees and disbursements of counsel)
reasonably incurred by such Purchasers in connection with the New Debentures.
Except as provided herein, the Purchasers shall bear all of their expenses,
including the fees and disbursements of counsel.
XII. SUBSTITUTION OF PURCHASERS
If for any reason any Purchaser shall not purchase the New Debentures
it has agreed to purchase hereunder, the remaining Purchasers shall have the
right within 24 hours to make arrangements satisfactory to the Company for the
purchase of such New Debentures hereunder. If they fail to do so, the amounts
of New Debentures that the remaining Purchasers are obligated, severally, to
purchase under this Agreement shall be increased in the proportions which the
total amount of New Debentures which they have respectively agreed to purchase
bears to the total amount of New Debentures which all non-defaulting Purchasers
have so agreed to purchase, or in such other proportions as the Purchasers may
specify to absorb such unpurchased New Debentures, provided that such aggregate
increases shall not exceed 10% of the total amount of the New Debentures set
forth in Schedule A to the Purchase Agreement. If any unpurchased New Debentures
-8-
still remain, the Company shall have the right either to elect to consummate the
sale except as to any such unpurchased New Debentures so remaining or, within
the next succeeding 24 hours, to make arrangements satisfactory to the remaining
Purchasers for the purchase of such New Debentures. In any such cases, either
the Purchasers or the Representative or the Company shall have the right to
postpone the Closing Date for not more than seven business days to a mutually
acceptable date. If the Company shall not elect to so consummate the sale and
any unpurchased New Debentures remain for which no satisfactory substitute
Purchaser is obtained in accordance with the above provisions, then this
Agreement shall terminate without liability on the part of any non-defaulting
Purchaser or the Company for the purchase or sale of any New Debenture under
this Agreement. No provision in this paragraph shall relieve any defaulting
Purchaser of liability to the Company for damages occasioned by such default.
XIII. MISCELLANEOUS
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the substantive laws of the State of New York.
Exhibit A
LETTERHEAD OF
XXXXXXX X. XXXXX
Vice President-General Counsel
_____________, 199_
and the other Purchasers named in
the Purchase Agreement dated ____________,
199_, between GTE Southwest Incorporated
and such Purchasers
Re: GTE Southwest Incorporated
___% Debentures, Series _, Due ____
Dear Sirs:
I have been requested by GTE Southwest Incorporated, a Delaware
corporation (the "Company"), as its Vice President-General Counsel to furnish
you with my opinion pursuant to a Purchase Agreement dated ______, 199_ (the
"Agreement") between you and the Company, relating to the purchase and sale of
$___,000,000 aggregate principal amount of its ___% Debentures, Series _, Due
____ (the "New Debentures").
In this connection I have examined among other things:
(a) The Restated Articles of Incorporation of the Company, as
amended, and the By-laws of the Company, each as presently in effect;
(b) A copy of the Indenture dated as of November 15, 1993, as amended
and supplemented by the First Supplemental Indenture dated as of December 6,
1995 and the Second Supplemental Indenture dated as of January 1, 1998 (as
amended and supplemented, the "Indenture"), between the Company and The Bank of
New York, as successor trustee to NationsBank of Georgia, National Association
(the "Trustee"), under which the New Debentures are being issued;
(c) [The Supplemental Indenture, dated as of ____, 199_ (the
"Supplemental Indenture") between the Company and the Trustee] [The resolutions
of the Board of Directors adopted _____, 199_ (the "Board Resolution")] [The
certificate, dated _____, 199_, of authorized officers of the Company pursuant
to authorization from the Board of Directors of the Company (the "Officers'
Certificate")] specifically authorizing the New Debentures, including the
issuance and sale of the New Debentures;
(d) The form of the New Debentures set forth in the [Supplemental
Indenture] [Board Resolution] [Officers' Certificate];
(e) The records of the corporate proceedings of the Company relating
to the authorization, execution and delivery of the Indenture and the
[Supplemental Indenture] [Board Resolution] [Officers' Certificate];
-2-
(f) The records of the corporate proceedings of the Company relating
to the authorization, execution and delivery of the Agreement;
(g) The record of all proceedings taken by the Company relating to
the registration of the New Debentures under the Securities Act of 1933, as
amended (the "Act"), and qualification of the Indenture under the Trust
Indenture Act of 1939, as amended (the "TIA"), particularly Registration
Statement No. 33-64795, including the form of prospectus contained therein
(unless the context shall otherwise require, the Registration Statement as
amended is hereinafter called the "Registration Statement" and the prospectus
dated _________, together with the prospectus supplement dated __________
relating to the New Debentures in the form filed under Rule 424(b) of the Act,
are hereinafter called the "Prospectus");
(h) Statutes, permits and other documents relating to the Company's
franchises; and
(i) The Registration Statement, the Prospectus and all documents
filed by the Company under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), which are incorporated by reference in the Prospectus (the
"Incorporated Documents") .
On the basis of my examination of the foregoing and of such other
documents and matters as I have deemed necessary as the basis for the opinions
hereinafter expressed, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware, is a duly licensed
and qualified foreign corporation in good standing under the laws of the States
of Arkansas, New Mexico, Oklahoma and Texas and has adequate corporate power to
own and operate its properties and to carry on the business in which it is now
engaged. There are no other states or jurisdictions in which the qualification
or licensing of the Company as a foreign corporation is necessary where the
failure to be qualified or licensed would have a material adverse effect on the
Company.
2. All legal proceedings necessary to the authorization, issue and
sale of the New Debentures to you have been taken by the Company.
3. The Agreement has been duly and validly authorized, executed and
delivered by the Company.
4. The Indenture is in proper form, has been duly authorized by the
Company, has been duly executed by the Company and the Trustee and delivered by
the Company and constitutes a legal, valid and binding agreement of the Company
enforceable in accordance with its terms, except as limited by bankruptcy,
insolvency and other laws affecting the enforcement of creditors' rights and the
availability of equitable remedies. The Indenture has been duly qualified under
the TIA.
-3-
5. The New Debentures conform as to legal matters with the statements
concerning them in the Registration Statement and Prospectus and have been duly
authorized and executed by the Company and (assuming due authentication and
delivery thereof by the Trustee) have been duly issued for value by the Company
and (subject to the qualifications set forth in paragraph 4 above) constitute
legal, valid and binding obligations of the Company enforceable in accordance
with their terms and are entitled to the benefits afforded by the Indenture.
6. Except as may be required by the securities or Blue Sky laws of
certain jurisdictions, no authorization, approval or consent of any governmental
regulatory authority is required for the issuance and sale of the New
Debentures.
7. The Company holds valid and subsisting franchises, licenses and
permits adequate for the conduct of its business in the territory served by it,
except for limited areas where the Company operates by sufferance, and none of
the franchises, licenses or permits of the Company contain any unduly burdensome
restrictions.
8. The Registration Statement became effective on December 13, 1995,
and, to the best of my knowledge, no proceedings under Section 8 of the Act
looking toward the possible issuance of a stop order with respect thereto are
pending or threatened and the Registration Statement remains in effect on the
date hereof. The Registration Statement and the Prospectus comply as to form in
all material respects with the relevant provisions of the Act and of the
Exchange Act as to the Incorporated Documents and the applicable rules and
regulations of the Securities and Exchange Commission thereunder, except that I
express no opinion as to the financial statements or other financial data
contained therein. The Prospectus is lawful for use for the purposes specified
in the Act in connection with the offer for sale and sale of the New Debentures
in the manner therein specified. I have no reason to believe that the
Registration Statement or the Incorporated Documents, considered as a whole on
the effective date of the Registration Statement, contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading or
that the Prospectus and the Incorporated Documents, considered as a whole on the
date hereof, 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, except that in
each case I express no opinion as to the financial statements or other financial
data contained therein.
-4-
Without my prior written consent, this opinion may not be relied upon
by any person or entity other than the addressee, quoted in whole or in part, or
otherwise referred to in any report or document, or furnished to any other
person or entity, except that Milbank, Tweed, Xxxxxx & XxXxxx may rely upon this
opinion as if this opinion were separately addressed to them.
Very truly yours,
Xxxxxxx X. Xxxxx
Vice President-General Counsel
c: Milbank, Tweed, Xxxxxx & XxXxxx
Exhibit B
MILBANK, TWEED, XXXXXX & XxXXXX
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
__________, 199_
GTE SOUTHWEST INCORPORATED
$___,000,000 __% Debentures, Series _, Due ____
and the other several Purchasers
referred to in the Purchase Agreement
dated ___________________, among such
Purchasers and GTE Southwest Incorporated
Dear Sirs:
We have been designated by GTE Southwest Incorporated (the "Company")
as counsel for the purchasers of $___,000,000 aggregate principal amount of its
___% Debentures, Series _, Due ____ (the "New Debentures"). Pursuant to such
designation and the terms of a Purchase Agreement dated ________, relating to
the New Debentures (the "Purchase Agreement"), entered into by you with the
Company, we have acted as your counsel in connection with your several
purchases this day from the Company of the New Debentures, which are issued
under an Indenture dated as of November 15, 1993, as amended and supplemented by
the First Supplemental Indenture dated as of December 6, 1995 and the Second
Supplemental Indenture dated as of January 1, 1998 (as amended and supplemented,
the "Indenture"), between the Company and The Bank of New York, as successor
trustee to NationsBank of Georgia, National Association (the "Trustee").
We have reviewed originals, or copies certified to our satisfaction,
of such corporate records of the Company, indentures, agreements and other
instruments, certificates of public officials and of officers and
representatives of the Company, and other documents, as we have deemed necessary
as a basis for the opinions hereinafter expressed. In such examination we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity with the original documents of all
documents submitted to us as copies, and the authenticity of the originals of
such latter documents. As to various questions of fact material to such
opinions, we have, when relevant facts were not independently established,
relied upon certifications by officers of the Company and statements contained
in the Registration Statement hereinafter mentioned.
In addition, we attended the closing held today at the offices of GTE
Service Corporation, One Stamford Forum, Stamford, Connecticut, at which the
Company caused the New Debentures to be delivered to your representatives at
-2-
the Depository Trust Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, for your
several accounts, against payment therefor.
On the basis of the foregoing and having regard to legal
considerations which we deem relevant, we are of the opinion that:
1. The Company is a validly existing corporation, in good standing,
under the laws of the State of Delaware.
2. The Purchase Agreement has been duly authorized, executed and
delivered by and on behalf of the Company.
3. The Indenture has been duly authorized, executed and delivered by
the Company and constitutes a legal, valid and binding agreement of the Company
enforceable in accordance with its terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws of general applicability
affecting the enforceability of creditors' rights. The enforceability of the
Indenture is subject to the effect of general principles of equity (regardless
of whether considered in a proceeding in equity or at law), including without
limitation (i) the possible unavailability of specific performance, injunctive
relief or any other equitable remedy and (ii) concepts of materiality,
reasonableness, good faith and fair dealing. The Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended.
4. The New Debentures have been duly authorized and conform as to
legal matters in all substantial respects to the description thereof contained
in the Registration Statement and Prospectus hereinafter mentioned. The New
Debentures (assuming due execution thereof by the Company and due authentication
and delivery by the Trustee) have been duly issued for value by the Company and
(subject to the qualifications stated in paragraph 3 above) constitute legal,
valid and binding obligations of the Company, and are entitled to the benefits
afforded by the Indenture in accordance with the terms of the Indenture and of
the New Debentures.
5. On the basis of information received by the Company from the
Securities and Exchange Commission (the "Commission") Registration Statement No.
33-64795 with respect to the New Debentures (the "Registration Statement"),
filed with the Commission pursuant to the Securities Act of 1933, as amended
(the "Act"), became effective under the Act on December 13, 1995, and thereupon
the Prospectus dated ______________ as supplemented by the Prospectus Supplement
dated ____________ (collectively, the "Prospectus") became lawful for use for
the purposes specified in the Act, in connection with the offer for sale and
sale of the New Debentures in the manner therein specified, subject to
compliance with the provisions of securities or Blue Sky laws of certain States
in connection with the offer for sale or sale of the New Debentures in such
States. To the best of our knowledge, the Registration Statement remains in
effect at this date.
6. The Registration Statement, as of its effective date, and the
Prospectus, as of the date hereof, together with the documents incorporated by
reference therein (the "Incorporated Documents") (except any financial
-3-
statements or other financial data contained or incorporated by reference in the
Registration Statement, the Prospectus or such Incorporated Documents, as to
which no opinion is expressed) appear on their face to be appropriately
responsive, in all material respects relevant to the offering of the New
Debentures, to the requirements of the Act and the Securities Exchange Act of
1934, as amended (the "Exchange Act"), as applicable, and the applicable rules
and regulations of the Commission thereunder.
The Registration Statement was filed on Form S-3 under the Act and,
accordingly, the Prospectus does not necessarily contain a current description
of the Company's business and affairs, since Form S-3 provides for the
incorporation by reference of certain documents filed with the Commission which
contain descriptions as of various dates. We participated in conferences with
counsel for, and representatives of, the Company in connection with the
preparation of the Registration Statement and Prospectus and we have reviewed
the Incorporated Documents. In connection with our participation in the
preparation of the Registration Statement and the Prospectus, we have not
independently verified the accuracy, completeness or fairness of the statements
contained therein or in the Incorporated Documents, and the limitations inherent
in the review made by us and the knowledge available to us are such that we are
unable to assume, and we do not assume, any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Prospectus or the Incorporated Documents, except as otherwise
specifically stated herein. None of the foregoing disclosed to us any
information which gave us reason to believe that the Registration Statement or
the Incorporated Documents, considered as a whole on the effective date of the
Registration Statement, contained or contain any untrue statement of a material
fact or omitted or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading or that the
Prospectus and the Incorporated Documents, considered as a whole on the date
hereof, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. We express no opinion
as to any document filed by the Company under the Exchange Act, whether prior or
subsequent to such effective date, except to the extent that such documents are
Incorporated Documents read together with the Registration Statement or the
Prospectus and considered as a whole, nor do we express any opinion as to the
financial statements or other financial data included in or omitted from, or
incorporated by reference in the Registration Statement, the Prospectus or the
Incorporated Documents.
We express no opinion as to matters governed by any laws other than
the laws of the State of New York, the Federal laws of the United States of
America and, to the extent the foregoing opinions involve the laws of the States
of Arkansas, New Mexico, Oklahoma and Texas, in reliance upon the opinion of
even date herewith of Xxxxxxx X. Xxxxx, Esq., Vice President-General Counsel of
the Company, the laws of the States of Arkansas, New Mexico, Oklahoma and Texas.
-4-
The opinions contained herein are rendered to you and are solely for
your benefit and the benefit of the Purchasers represented by you in connection
with the transaction contemplated by the Purchase Agreement. These opinions may
not be relied upon by you for any other purpose, or furnished to, quoted or
relied upon by any other person, firm or corporation for any purpose, without
our prior written consent.
Very truly yours,
MILBANK, TWEED, XXXXXX & XxXXXX
Exhibit C
LETTER OF INDEPENDENT PUBLIC ACCOUNTANTS
The letter of independent public accountants for the Company to be
delivered pursuant to Article IV, paragraph (D) of the document entitled
Standard Purchase Agreement Provisions, January 1998 Edition, shall be to the
effect that:
At the closing, the Purchasers shall have received such number of
copies as are necessary to provide one for each Purchaser of a letter addressed
to the Company and satisfactory to the Purchasers or the Representative and
counsel to the Purchasers, dated as of the Closing Date and encompassing the
performance of certain procedures described in the letter as of a date not more
than five business days prior to the Closing Date (the "Cutoff Date"), from
Xxxxxx Xxxxxxxx LLP, confirming that they are independent public accountants
with respect to the Company within the meaning of the Securities Act of 1933, as
amended (the "Act") and the applicable published rules and regulations of the
Commission thereunder, specifically Rule 2-01 of Regulation S-X, and stating in
effect (1) that in their opinion, the financial statements and schedules audited
by them and incorporated by reference in the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the Act, and
the Securities Exchange Act of 1934, as amended the ("Exchange Act") and the
published rules and regulations thereunder, (2) that although they have not
audited any financial statements of the Company as of any date or for any period
subsequent to the prior-year audit, and although they have conducted an audit
for that period, the purpose (and therefore the scope) of the audit was to
enable them to express their opinion on the financial statements as of that date
and for the year then ended, but not on the financial statements for any interim
period within that year; therefore, they are unable to and do not express any
opinion on the unaudited condensed consolidated balance sheet as of the latest
available interim date, and the unaudited condensed consolidated statements of
income, reinvested earnings, and cash flows for the latest available interim
period subsequent to that prior-year audit which are included in the Prospectus
and for the comparable period of the preceding year; they have performed the
procedures specified by the American Institute of Certified Public Accountants
for a review of interim financial information as described in SAS No. 71,
Interim Financial Information, on the latest available unaudited interim
condensed consolidated financial statements prepared by the Company, inquired of
certain officials of the Company responsible for financial and accounting
matters, and read the minutes of the Board of Directors and shareholders of the
Company, all of which procedures have been agreed to by the Purchasers, nothing
has come to their attention which caused them to believe that: (a) any unaudited
interim condensed consolidated financial statements incorporated by reference in
the Prospectus (i) do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act as it applies to Form 10-
Q and the related published rules and regulations thereunder or (ii) have not
been presented in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited financial
statements incorporated by reference in the Prospectus; or (b) (i) as of the
-2-
date of the latest available unaudited condensed consolidated interim financial
statements prepared by the Company, there have been any changes in the capital
stock or any increase in the short-term indebtedness or long-term debt of the
Company or any decrease in net assets, in each case as compared with the amounts
shown on the latest balance sheet incorporated by reference in the Prospectus,
(ii) for the period from the date of the latest financial statements included or
incorporated by reference in the Prospectus to the specified date referred to in
the preceding clause (i), there were any decreases in operating revenues, net
operating income, net income or the Company's ratio to earnings to fixed
charges, in each case as compared with the comparable period of the preceding
year, or (iii) as of the Cutoff Date there have been any material changes in the
capital stock or any material increase in the debt of the Company, or any
material decreases in net assets, in each case as compared with amounts shown in
the latest balance sheet included or incorporated by reference in the
Prospectus, and (iv) for the period from the date of the latest available
interim financial statements referred to in clause (b)(i) above to the Cutoff
Date, there were any material decreases in operating revenues, net operating
income or net income, in each case as compared with the comparable period of the
preceding year, except in all instances for changes or decreases which the
Prospectus discloses have occurred or may occur or as disclosed in such letter
and except for changes occasioned by the declaration and payment of dividends on
the stock of the Company or occasioned by sinking fund payments made on the debt
securities of the Company, and (3) that they have performed the following
additional procedures with respect to the ratios of earnings to fixed charges
included or incorporated by reference in the Prospectus: (i) compared the
amounts used in the computation of such ratios with the amounts included in the
financial statements incorporated by reference in the Prospectus and noted
agreement in all material respects, and (ii) recomputed the ratios and noted
agreement in all material respects.
