Exhibit 1a
PACIFIC BELL
DEBT SECURITIES
FORM OF UNDERWRITING AGREEMENT
[Date]
To the Representative
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Pacific Bell, a California corporation (the "Company"), may issue and
sell from time to time series of its debt securities registered under the
registration statement referred to in Paragraph 1(a) hereof ("Securities" and,
individually, "Security"). The Securities will be issued under an Indenture,
dated as of October 7, 1997 (the "Indenture"), from the Company to The Bank of
New York, as Trustee, in one or more series, which series may vary as to
interest rates, maturities, redemption provisions and selling prices, with all
such terms for any particular series being determined at the time of sale. The
Company proposes to sell to the underwriters named in Schedule II hereto
("Underwriters") for whom you are acting as representative ("Representative") a
series of Securities, of the designation, with the terms and in the aggregate
principal amount specified in Schedule I hereto ("Underwritten Securities" and,
individually, "Underwritten Security").
1. The Company represents and warrants to, and agrees with, the several
Underwriters that:
(a) A registration statement on Form S-3 with respect to the
Securities has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended ("Act" or
"Securities Act"), and the rules and regulations ("Rules and
Regulations") of the Securities and Exchange Commission ("Commission" or
"SEC") thereunder and has become effective. As used in this Agreement,
(i) "Registration Statement" means that registration statement, as
amended or supplemented to the date hereof (including all documents
incorporated therein by reference); (ii) "Preliminary Prospectus" means
each prospectus (including all documents incorporated therein by
reference) included in that
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Registration Statement, or amendments thereto or supplements thereof,
before it became effective under the Act, including any prospectus filed
with the Commission pursuant to Rule 424(a) of the Rules and Regulations;
(ii) "Basic Prospectus" means the prospectus (including all documents
incorporated therein by reference) included in the Registration
Statement; and (iv) "Prospectus" means the Basic Prospectus, together
with any prospectus amendment or supplement (including in each case all
documents incorporated therein by reference) specifically relating to the
Underwritten Securities, as filed with, or mailed for filing to, the
Commission pursuant to paragraph (b) or (c) of Rule 424 of the Rules and
Regulations. The Commission has not issued any order preventing or
suspending the use of the Prospectus.
(b) The Registration Statement and each Prospectus contain, and
(in the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made)
will contain at all times during the period specified in Paragraph 8(c)
hereof, all statements which are required by the Act, the Securities
Exchange Act of 1934, as amended ("Exchange Act"), the Trust Indenture
Act of 1939, as amended ("Trust Indenture Act"), and the rules and
regulations of the Commission under such Acts; the Indenture, including
any amendments and supplements thereto, pursuant to which the
Underwritten Securities will be issued, will conform with the
requirements of the Trust Indenture Act and the rules and regulations of
the Commission thereunder, and the Registration Statement and the
Prospectus do not, and (in the case of any amendment or supplement to any
such document, or any material incorporated by reference in any such
document, filed with the Commission after the date as of which this
representation is being made) will not at any time during the period
specified in Paragraph 8(c) hereof, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided that the Company makes no representation or warranty as to
information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with information
furnished in writing to the Company through the Representative by or on
behalf of any Underwriter specifically for use therein, or as to any
statements in or omissions from the Statement of Eligibility of the
Trustee under the Indenture.
(c) The Company is not in violation of its corporate charter or
bylaws or in default under any agreement, indenture or instrument, the
effect of which violation or default would be material to the Company,
the execution, delivery and performance of this Agreement and any Delayed
Delivery Contracts (as defined in Paragraph 3 hereof) and compliance by
the Company with the provisions of the Underwritten Securities and the
Indenture will not conflict with, result in the
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the creation or imposition of any lien, charge or encumbrance upon any of
the assets of Company pursuant to the terms of, or constitute a default
under, any agreement, indenture or instrument, or result in a violation
of the corporate charter or bylaws of the Company or any order, rule or
regulation of any court or governmental agency having jurisdiction over
the Company; and except as required by the Act, the Trust Indenture Act
and applicable state securities laws, no consent, authorization or order
of, or filing or registration with, any court or governmental agency is
required for the execution, delivery and performance of this Agreement,
the Delayed Delivery Contract, if any, and the Indenture.
(d) Except as described in or contemplated by the Registration
Statement and the Prospectus, there shall have not occurred any changes
or any development involving a prospective change, or affecting
particularly the business or properties of the Company or its
subsidiaries which materially impairs the investment quality of the
Underwritten Securities since the dates as of which information is given
in the Registration Statement and the Prospectus.
(e) On the Delivery Date (as defined in Paragraph 7 hereof), (i)
the Indenture will have been duly authorized, executed and delivered by
the Company and will constitute the legally binding obligation of the
Company, enforceable in accordance with its terms, (ii) the Underwritten
Securities will have been duly authorized and, upon payment therefor as
provided in this Agreement, will constitute legally binding obligations
of the Company entitled to the benefits of the Indenture, and (iii) the
Underwritten Securities and the Indenture will conform to the
descriptions thereof contained in the Prospectus.
(f) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
California, with full corporate power and authority to own its properties
and conduct its business as described in the Prospectus, and is duly
qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such qualification
wherein it owns or leases properties or conducts business, except where
the failure to so qualify would not have a material adverse effect on the
Company.
(g) Except as described in the Prospectus, there is no material
litigation or governmental proceeding pending or, to the knowledge of the
Company, threatened against the Company which is reasonably expected to
result in any material adverse change in the financial condition, results
of operations, business or prospects of the Company or which is required
to be disclosed in the Registration Statement.
(h) The financial statements filed as part of the Registration
Statement or included in any Preliminary Prospectus or the Prospectus
present, or (in the case of
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any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the Commission
after the date as of which this representation is being made) will
present at all times during the period specified in Paragraph 8(c)
hereof, fairly, the financial condition and results of operations of the
Company, at the dates and for the periods indicated, and have been, and
(in the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made)
will be at all times during the period specified in Paragraph 8(c)
hereof, prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved
(except as described in the notes thereto).
(i) The documents incorporated by reference into any Preliminary
Prospectus or the Prospectus have been, and (in the case of any amendment
or supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date
as of which this representation is being made) will be, at all times
during the period specified in Paragraph 8(c) hereof, prepared by the
Company in conformity with the applicable requirements of the Act and the
Rules and Regulations and the Exchange Act and the rules and regulations
of the Commission thereunder and such documents have been, or (in the
case of any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the Commission
after the date as of which this representation is being made) will be at
all times during the period specified in Paragraph 8(c) hereof, timely
filed as required thereby.
(j) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the Act or by
the Rules and Regulations, or which were required to be filed as exhibits
to any document incorporated by reference in the Prospectus by the
Exchange Act or the rules and regulations of the Commission thereunder,
which have not been filed as exhibits to the Registration Statement or to
such document or incorporated therein by reference as permitted by the
Rules and Regulations or the rules and regulations of the Commission
under the Exchange Act as required.
(k) No order, consent, approval, authorization, registration or
qualification of or with any governmental agency or body having
jurisdiction over the Company or any of its properties is required for
the issue and sale of the Underwritten Securities or the consummation by
the Company of the transactions contemplated by this Agreement or the
Indenture, except such as have been, or will have been prior to the
Delivery Date, obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Underwritten Securities by the
Underwriters.
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2. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
each Underwriter, severally and not jointly, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
and on the other terms set forth in Schedule I hereto, the principal amount of
the Underwritten Securities set forth opposite its name in Schedule II hereto.
3. Any offer to purchase Underwritten Securities by institutional
investors solicited by the Underwriters for delayed delivery shall be made
pursuant to contracts substantially in the form of Exhibit A attached hereto,
with such changes therein as the Company and the Representative may approve
("Delayed Delivery Contracts"). The Company shall have the right, in its sole
discretion, to approve or disapprove each such institutional investor.
Underwritten Securities which are subject to Delayed Delivery Contracts are
herein sometimes called "Delayed Delivery Underwritten Securities" and
Underwritten Securities which are not subject to Delayed Delivery Contracts are
herein sometimes called "Immediate Delivery Underwritten Securities."
Contemporaneously with the purchase on the Delivery Date by the
Underwriters of the Immediate Delivery Underwritten Securities pursuant to this
Agreement, the Company will pay to the Representative, for the account of the
Underwriters, the compensation specified in Schedule I hereto for arranging the
sale of Delayed Delivery Underwritten Securities. The Underwriters shall have no
responsibility with respect to the validity or performance of any Delayed
Delivery Contracts.
For the purpose of determining the principal amount of Immediate Delivery
Underwritten Securities to be purchased by each Underwriter, there shall be
deducted from the principal amount of Underwritten Securities to be purchased by
such Underwriter as set forth in Schedule II hereto that portion of the
aggregate principal amount of Delayed Delivery Underwritten Securities that the
principal amount of Underwritten Securities to be purchased by such Underwriter
as set forth in Schedule II hereto bears to the aggregate principal amount of
Underwritten Securities set forth therein to be purchased by all of the
Underwriters (in each case as adjusted by the Representative to avoid fractions
of the minimum principal amount in which the Underwritten Securities may be
issued), except to the extent that the Representative determines, in its
discretion, that such deduction shall be otherwise than in such proportion and
so advises the Company.
4. [Reserved]
5. The Company shall not be obligated to deliver any Underwritten
Securities except upon payment for all Immediate Delivery Underwritten
Securities to be purchased pursuant to this Agreement as hereinafter provided.
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6. If any Underwriter defaults in the performance of its obligations
under this Agreement, the remaining non-defaulting Underwriters shall be
obligated to purchase the Immediate Delivery Underwritten Securities which the
defaulting Underwriter agreed but failed to purchase in the respective
proportions which the principal amount of Underwritten Securities set forth in
Schedule II hereto to be purchased by each remaining non-defaulting Underwriter
set forth therein bears to the aggregate principal amount of Underwritten
Securities set forth therein to be purchased by all the remaining non-defaulting
Underwriters; provided that the remaining non-defaulting Underwriters shall not
be obligated to purchase any Immediate Delivery Underwritten Securities if the
aggregate principal amount of Immediate Delivery Underwritten Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase exceeds
9.09% of the total principal amount of Underwritten Securities, and any
remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the principal amount of Underwritten Securities set forth in
Schedule II hereto to be purchased by it. If the foregoing maximums are
exceeded, the remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Representative who so agree, shall have the right, but shall
not be obligated, to purchase, in such proportion as may be agreed upon among
them, all the Immediate Delivery Underwritten Securities. If the remaining
Underwriters or other underwriters satisfactory to the Representative do not
elect to purchase the Immediate Delivery Underwritten Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter, or the Company, except that the Company will continue to be liable
for the payment of expenses as set forth in Paragraph 8(i) hereof.
Nothing contained in this Paragraph 6 shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other Underwriters are obligated or agree to purchase the
Immediate Delivery Underwritten Securities of a defaulting or withdrawing
Underwriter, either the Representative or the Company may postpone the Delivery
Date for up to seven full business days in order to effect any changes that in
the opinion of the Company or the Representative may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement.
7. Delivery of and payment for the Immediate Delivery Underwritten
Securities shall be made at such address, date and time as specified in Schedule
I hereto. This date and time are sometimes referred to as the "Delivery Date."
On the Delivery Date, the Company shall deliver the Immediate Delivery
Underwritten Securities to the Representative for the account of each
Underwriter against payment to or upon the order of the Company of the purchase
price by wire transfer of immediately available funds settled through the New
York Clearing House or such other Clearing House as is named in Schedule I. Time
shall be of the essence, and delivery at the time and place specified pursuant
to this Agreement is a further condition of the obligation of each Underwriter
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hereunder. Upon delivery, the Immediate Delivery Underwritten Securities shall
be in such form or forms and in such denominations as may be set forth in
Schedule I. Immediate Delivery Underwritten Securities in registered form shall
be in such authorized denominations and registered in such names as the
Representative shall request in writing not less than two full business days
prior to the Delivery Date. For the purpose of expediting the checking and
packaging of the Immediate Delivery Underwritten Securities, the Company shall
make the Immediate Delivery Underwritten Securities available for inspection by
the Representative in New York, New York not later than 2:00 P.M., local time,
on the business day prior to the Delivery Date. For purposes of Rule 15c6-1
under the Exchange Act, the Delivery Date (if later than the otherwise
applicable settlement date) shall be the date for payment of funds and delivery
of securities for all the Immediate Delivery Underwritten Securities sold
pursuant to the offering, other than Delayed Delivery Underwritten Securities
for which payment of funds and delivery of securities shall be as hereinafter
provided.
8. The Company agrees with the several Underwriters:
(a) The Company will furnish promptly to the Representative and
to counsel for the Underwriters signed copies of the Registration
Statement as originally filed and each amendment and supplement thereto
filed prior to the date hereof and relating to or covering the
Underwritten Securities, and a copy of the Prospectus filed with the
Commission, including all documents incorporated therein by reference and
all consents and exhibits filed therewith;
(b) The Company will deliver promptly to the Representative such
reasonable number of the following documents as the Representative may
request: (i) conformed copies of the Registration Statement (excluding
exhibits other than the computation of the ratio of earnings to fixed
charges, the Indenture and this Agreement), (ii) the Prospectus and (iii)
any documents incorporated by reference in the Prospectus;
(c) During any period when a Prospectus relating to the
Underwritten Securities is required by law to be delivered, the Company
will not file any amendment of the Registration Statement nor will the
Company file any amendment or supplement to the Prospectus (except for
(i) an amendment or supplement consisting solely of the filing of a
document under the Exchange Act or (ii) a supplement relating to an
offering of securities other than the Underwritten Securities), unless
the Company has furnished you a copy of such proposed amendment or
supplement for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject
to the foregoing sentence, the Company will cause the Prospectus and any
amendment or supplement thereto to be filed with the SEC as required
pursuant to Rule 424 under the Securities Act. The Company will promptly
advise you (i) when the Prospectus
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or any amendment or supplement thereto shall have been filed with the SEC
pursuant to Rule 424 under the Securities act, (ii) when any amendment of
the Registration Statement shall have become effective, (iii) of any
request by the SEC for any amendment of the Registration Statement or
amendment of or supplement to the Prospectus or for any additional
information, (iv) of the issuance by the SEC of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Underwritten Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The
Company will promptly (upon filing thereof) furnish you a copy of any
amendment or supplement to the Prospectus or Registration Statement not
furnished to the Representative for prior review pursuant to exception
(i) or (ii) of the first sentence of this paragraph 8(c). The Company
will use its best efforts to prevent the issuance of any such stop order
and, if issued, to obtain as soon as possible the withdrawal thereof.
(d) If, at any time when a prospectus relating to the
Underwritten Securities is required to be delivered under the Securities
Act, any event occurs as a result of which the Registration Statement, as
then amended, or the Prospectus, as then supplemented, would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it shall
be necessary to amend the Registration Statement or to supplement the
Prospectus to comply with the Securities Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (i) notify you of
the happening of such event, (ii) prepare and file with the SEC, subject
to the first sentence of paragraph (c) of this Section 8, an amendment or
supplement which will correct such statement or omission or an amendment
or supplement which will effect such compliance and (iii) will supply any
such amended or supplemented Prospectus to you in such quantities as the
Representative may reasonably request.
(e) As soon as practicable, the Company will make generally
available to its security holders and to the Representative an earnings
statement or statements of the Company which will satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 under the Securities
Act.
(f) During a period of five years after the date hereof, the
Company will furnish to the Representative copies of all reports and
financial statements furnished by the Company to each securities exchange
on which securities issued by the Company may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder.
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(g) The Company will endeavor to qualify the Underwritten
Securities for sale under the laws of such jurisdiction as you may
designate and will maintain such qualifications in effect so long as
required for the distribution of the Underwritten Securities, provided
that in connection therewith the Company shall not be required to qualify
as a foreign corporation or take any action which would subject it to
general or unlimited service of process in any jurisdiction where it is
not now so subject.
(h) The Company will pay the costs incident to the authorization,
issuance and delivery of the Underwritten Securities and any taxes
payable in that connection; the costs incident to the preparation,
printing and filing under the Act of the Registration Statement and any
amendments, supplements and exhibits thereto; the costs of distributing
the Registration Statement as originally filed and each amendment and
post-effective amendment thereof (including exhibits), any Preliminary
Prospectus, the Prospectus and any documents incorporated by reference in
any of the foregoing documents; the costs of producing this Agreement,
the Delayed Delivery Contracts, if any, and the Indenture; fees paid to
rating agencies in connection with the rating of the Securities,
including the Underwritten Securities; the fees and expenses of
qualifying the Underwritten Securities under the securities laws of the
several jurisdictions as provided in this Paragraph and of preparing and
printing a Blue Sky Memorandum and a memorandum concerning the legality
of the Securities, including the Underwritten Securities, as an
investment (including fees of counsel to the Underwriters); and all other
costs and expenses incident to the performance of the Company's
obligations under this Agreement; provided that, except as provided in
this Paragraph and in Paragraph 12 hereof, the Underwriters shall pay
their own costs and expenses, including the fees and expenses of their
counsel, any transfer taxes on the Underwritten Securities which they may
sell and the expenses of advertising any offering of the Underwritten
Securities made by the Underwriters; and
(i) Until the termination of the offering of the Underwritten
Securities, to timely file all documents, and any amendments to
previously filed documents, required to be filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act.
9. (a) The Company shall indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of
the Act from and against any loss, claim, damage or liability, joint or
several, and any action in respect thereof, to which that Underwriter or
controlling person may become subject, under the Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of,
or is based upon, any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or arises out of, or is based upon, the
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omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and shall reimburse each Underwriter and such controlling
person for any legal and other expenses reasonably incurred by that
Underwriter or controlling person in investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred (but no more frequently than
annually); provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus in reliance upon
and in conformity with written information furnished to the Company
through the Representative by or on behalf of any Underwriter
specifically for use therein. The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to any
Underwriter or controlling person.
(b) Each Underwriter shall indemnify and hold harmless the
Company, each of their directors, each of their officers who signed the
Registration Statement and any person who controls the Company, within
the meaning of the Act from and against any loss, claim, damage or
liability, joint or several, and any action in respect thereof, to which
the Company, or any such director, officer or controlling person may
become subject, under the Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or
arises out of, or is based upon, the omission or alleged omission to
state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, but in each case only to
the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with information furnished in writing to the Company through the
Representative by or on behalf of that Underwriter specifically for use
therein, and shall reimburse the Company for any legal and other expenses
reasonably incurred by the Company or any such director, officer or
controlling person in investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such
expenses are incurred (but no more frequently that annually). The
foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company or any of its directors,
officers or controlling or persons.
(c) Promptly after receipt by an indemnified party under this
Paragraph 9 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Paragraph 9, notify the
indemnifying party in writing of the claim or the commencement of that
action, provided that the failure to notify the indemnifying
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party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under Paragraph 9(a) or 9(b). If any
such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party
shall be entitled to participate therein, and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party
of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under
this Paragraph 9 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation. If the indemnifying party shall not
elect to assume the defense of such action, such indemnifying party will
reimburse such indemnified party for the reasonable fees and expenses of
any counsel retained by them. In the event that the parties to any such
action (including impleaded parties) include both the Company and one or
more Underwriters and either (i) the indemnifying party or parties and
indemnified party or parties mutually agree or (ii) representation of
both the indemnifying party or parties and the indemnified party or
parties by the same counsel is inappropriate under applicable standards
of professional conduct or in the opinion of such counsel due to actual
or potential differing interests between them, then the indemnifying
party shall not have the right to assume the defense of such action on
behalf of such indemnified party and will reimburse such indemnified
party for the reasonable fees and expenses of any counsel retained by
them and satisfactory to the indemnifying party, it being understood that
the indemnifying party shall not, in connection with any one action or
separate but similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys
for all such indemnified parties, which firm shall be designated in
writing by the Representative in the case of an action in which one or
more Underwriters or controlling persons are indemnified parties and by
the Company in the case of an action in which the Company or any of its
directors, officers or controlling persons are indemnified parties. The
indemnifying party or parties shall not be liable under this Agreement
with respect to any settlement made by any indemnified party or parties
without prior written consent by the indemnifying party or parties to
such settlement.
(d) If the indemnification provided for in this Paragraph 9 shall
for any reason be unavailable to an indemnified party under Paragraph
9(a) or 9(b) hereof in respect of any loss, claim, damage, liability or
any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect
thereof, in such proportion as is appropriate to reflect the relative
benefits by the Company, on the one hand, and the Underwriters, on the
other hand, from the offering of the
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Underwritten Securities. If, however, this allocation is not permitted by
applicable law, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect thereof, in such
proportion as shall be appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Underwriters, on the
other hand, from the offering of the Underwritten Securities and the
relative fault of the Company, on the one hand, and the Underwriters, on
the other hand, with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the
offering of the Underwritten Securities (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters with respect to such offering.
The relative fault shall be determined by reference to whether the untrue
or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in
respect thereof, referred to above in this Paragraph 9(d) shall be deemed
to include, for purposes of this Paragraph 9(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Paragraph 9(d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute as provided in this Paragraph
9(d) are several in proportion to their respective underwriting
obligations and not joint.
(e) The agreements contained in this Paragraph 9 and the
representations, warranties and agreements of the Company in Paragraph 1
and Paragraph 8 hereof shall survive the delivery of the Underwritten
Securities and shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any investigation made
by or on behalf of any indemnified party.
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10. The obligations of the Underwriters under this Agreement may be
terminated by the Representative, in its absolute discretion, by notice given to
and received by the Company prior to the delivery of and payment for the
Immediate Delivery Underwritten Securities, if, during the period beginning on
the date hereof to and including the Delivery Date, (a) trading in securities
generally on the New York Stock Exchange, Inc. is suspended or materially
limited, or (b) a banking moratorium is declared by either Federal or New York
State authorities, or (c) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis or the declaration by the
United States of war or a national emergency the effect of which on the
financial markets of the United States is material and adverse and is such as to
make it, in the reasonable judgment of the Representative, impracticable or
inadvisable to market such Underwritten Securities on the terms and in the
manner contemplated by the Prospectus, or (d) the Company shall have received
notice that any rating of any of the Company's unsecured senior debt securities
shall have been lowered by any nationally recognized statistical rating
organization (as defined in Rule 15c3-1 under the Exchange Act) or any such
organization has publicly announced that it has under surveillance or review,
with possible negative implications, the ratings of any of the Company's
unsecured senior debt securities, or (e) there shall have occurred any change,
or any development involving a prospective change, in or affecting particularly
the business or properties of the Company or its subsidiaries which, in the
Representative's reasonable judgment, materially impairs the investment quality
of the Underwritten Securities.
11. The respective obligations of the Underwriters under the Agreement
with respect to the Underwritten Securities are subject to the accuracy, on the
date hereof and on the Delivery Date, of the representations and warranties of
the Company contained herein, to performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions
applicable to the Underwritten Securities:
(a) At or before the Delivery Date, no stop order suspending the
effectiveness of the Registration Statement nor any order directed to any
document incorporated by reference in the Prospectus shall have been
issued and prior to that time no stop order proceeding shall have been
initiated or threatened by the Commission and no challenge shall have
been made by the Commission or its staff as to the accuracy or adequacy
of any document incorporated by reference in the Prospectus; any request
of the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been
complied with; and after the date hereof the Company shall not have filed
with the Commission any amendment or supplement to the Registration
Statement or the Prospectus (or any document incorporated by reference
therein) that shall have been disapproved by the Representative.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that the Registration Statement
or the Prospectus
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contains an untrue statement of a fact which is material or omits to
state a fact which is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Underwritten
Securities and the Indenture and the form of the Registration Statement,
the Prospectus (other than financial statements and other financial data)
and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be satisfactory in all respects to
Sullivan & Cromwell, counsel for the Underwriters, and the Company shall
have furnished to such counsel all documents and information that they
may reasonably request to enable them to pass upon such matters.
(d) The Vice President and General Counsel to the Company shall
have furnished to the Representative his opinion addressed to the
Underwriters and dated the Delivery Date, as counsel, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of California, with full corporate power and
authority to own its properties and conduct its business as
described in the Prospectus, and is duly qualified to do business
as a foreign corporation and is in good standing under the laws
of each jurisdiction which requires such qualification wherein it
owns or leases properties or conducts business, except where the
failure to so qualify would not have a material adverse effect on
the Company;
(ii) the Indenture has been duly authorized, executed
and delivered, has been duly qualified under the Trust Indenture
Act, and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms
(subject, as to enforcement of remedies, to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws of general applicability
relating to or affecting creditors' rights generally from time to
time in effect and to general principles of equity);
(iii) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any
court or governmental agency, authority, body or any arbitrator
involving the Company of a character required to be disclosed in
the Registration Statement which is not adequately disclosed in
the Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as
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an exhibit, which is not described or filed as required; and
the statements included or incorporated by reference in the
Prospectus describing any legal proceedings or material contracts
or agreements relating to the Company fairly summarize such
matters; the Underwritten Securities, the Indenture and any
Delayed Delivery Contracts conform to the descriptions thereof
contained under the following (or comparable) captions of the
Prospectus: "Description of Debt Securities" and "Plan of
Distribution";
(iv) the Immediate Delivery Underwritten Securities
have been duly authorized, executed, authenticated, issued and
delivered and are valid and legally binding obligations of the
Company entitled to the benefits of the Indenture;
(v) the Delayed Delivery Underwritten Securities, if
any, have been duly authorized and, when executed, authenticated,
issued and delivered to, and paid for by, the respective
purchasers thereof in accordance with the Indenture and the
related Delayed Delivery Contracts, will be valid and legally
binding obligations of the Company entitled to the benefits of
the Indenture;
(vi) the Registration Statement and any amendments
thereto have become effective under the Securities Act; to the
best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened,
and the Registration Statement, the Prospectus and each amendment
thereof or supplement thereto as of their respective effective or
issue dates (other than the financial statements and other
financial and statistical information contained therein as to
which such counsel need express no opinion) complied as to form
in all material respects with the applicable requirements of the
Securities Act, the Exchange Act and the Trust Indenture Act and
the respective rules and regulations thereunder; and such counsel
has no reason to believe that the Registration Statement, or any
amendment thereof, at the time it became effective or at the date
of this Agreement or at the Delivery Date, contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, at the
date of this Agreement or at the Delivery Date, included any
untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
-15-
(vii) this Agreement and the Delayed Delivery
Contracts, if any, have been duly authorized, executed and
delivered by the Company;
(viii) no order, consent, approval, authorization,
registration or qualification of or with any governmental agency
or body having jurisdiction over the Company or any of its
properties is required for the issue and sale of the Underwritten
Securities or the consummation by the Company of the transactions
contemplated by this Agreement or the Indenture, except such as
have been obtained under the Securities Act and the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the sale and
distribution of the Underwritten Securities; and
(ix) neither the execution and delivery of the
Indenture, this Agreement or any Delayed Delivery Contracts, the
issue and sale of the Underwritten Securities, nor the
consummation of any other of the transactions herein or therein
contemplated nor the fulfillment of the terms hereof or thereof
will conflict with, result in a breach of, or constitute a
default under, the charter or by-laws of the Company or the terms
of any indenture or other agreement or instrument known to such
counsel and to which the Company is a party or by which the
Company or any of its assets is bound, or any order or regulation
known to such counsel to be applicable to the Company of any
court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Company.
In rendering such opinion, such counsel may rely, as to the execution of the
Indenture by the Trustee, upon a certificate of the Trustee setting forth the
facts as to such execution.
In rendering such opinion, such counsel may also rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
California upon the opinion of other counsel of good standing believed to be
reliable, provided that such counsel states in such opinion that such counsel
and the Representative are justified in relying upon the opinion of such other
counsel, and (B) as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and public officials.
In rendering such opinion with respect to clause (viii) above, insofar as it
relates to regulatory authorities in the states in which the Company operates,
such counsel may rely on the opinions of local counsel satisfactory to such
counsel.
-16-
(e) The Representative shall have received from Sullivan &
Cromwell, counsel for the Underwriters, such opinion or opinions, dated
the date hereof, with respect to the issuance and sale of the
Underwritten Securities, the Indenture, the Registration Statement, the
Prospectus and other related matters as the Representative may
reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(f) The Company shall have furnished to the Representative a
certificate signed by its Chairman of the Board or its President or a
Vice President and its Treasurer or an Assistant Treasurer stating that
after reasonable investigation and to the best of their knowledge:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material respects
on and as of the Delivery Date with the same effect as if made on
the Delivery Date; the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied as a condition to the obligation of the
Underwriters to purchase the Underwritten Securities hereunder;
and the conditions set forth in Paragraphs 11(a) and 11(h) have
been fulfilled;
(ii) as of the date of the Prospectus, the
Registration Statement and the Prospectus did not include any
untrue statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the
Prospectus, there has been no material adverse change in the
condition (financial or other), earnings, business or properties
of the Company and its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus.
(g) The Company shall have furnished to the Representative (i) a
letter of Ernst & Young LLP, addressed to the Board of Directors of the
Company and the Underwriters and dated the later of the effective date of
the Registration Statement or the date of the filing of the Company's
latest Annual Report on Form 10-K, of the type described in the American
Institute of Certified Public Accountants' Statement on Auditing
Standards No. 72 and covering such financial statement items as counsel
for the Underwriters may reasonably have requested; (ii) a letter of
Ernst & Young LLP, addressed to the Underwriters and dated the Delivery
Date,
-17-
stating, as of the date of such letter (or, with respect to matters
involving changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as of a date
not more than five days prior to the date of such letter), the
conclusions and findings of such firm with respect to the financial
information and other matters covered by its letter referred to in
subclause (i) above and confirming in all material respects the
conclusions and findings set forth in such prior letter; and (iii) a
letter, dated the Delivery Date, of any other accountants that have
audited financial statements included or incorporated by reference in the
Registration Statement and Prospectus, addressed to the Underwriters, of
the type described in SAS 72 and covering such financial statement items
as the Underwriters may reasonably request.
(h) No order, consent, approval, authorization, registration or
qualification of or with any governmental agency or body having
jurisdiction over the Company or any of its properties is required for
the issue and sale of the Underwritten Securities or the consummation by
the Company of the transactions contemplated by this Agreement or the
Indenture, except such as have been, or will have been prior to the
Delivery Date, obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Underwritten Securities by the
Underwriters.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to the
Representative.
12. If the Company shall fail to tender the Immediate Delivery
Underwritten Securities for delivery to the Underwriters for any reason
permitted under this Agreement, or if the Underwriters shall decline to purchase
the Immediate Delivery Underwritten Securities for any reason permitted under
this Agreement (other than pursuant to Paragraph 6 or Paragraphs 10(a) - (d)
hereof), the Company shall reimburse the Underwriters for the reasonable fees
and expenses of their counsel and for such other out-of-pocket expenses as shall
have been incurred by them in connection with this Agreement and the proposed
purchase of Immediate Delivery Underwritten Securities and the solicitation of
any purchases of the Delayed Delivery Underwritten Securities, and upon demand
the Company shall pay the full amount thereof to the Representative. If this
Agreement is terminated pursuant to Paragraph 6 hereof by reason of the default
of one or more Underwriters or pursuant to Paragraphs 10(a) - (d) hereof, the
Company shall not be obligated to reimburse any Underwriter on account of those
expenses.
13. The Company shall be entitled to act and rely upon any request,
consent, notice or agreement by, or on behalf of, the Representative. Any notice
by the Company
-18-
to the Underwriters shall be sufficient if given in writing or by facsimile
transmission confirmed promptly in writing addressed to the Representative at
its address set forth in Schedule I hereto, and any notice by the Underwriters
to the Company shall be sufficient if given in writing or by facsimile
transmission confirmed promptly in writing addressed to the Company at 175 E.
Houston St., 7th Floor, San Antonio, Texas 78205, Telecopy Number: (210)
351-3849, Attention of the Treasurer with a copy to the Corporate/SEC Attorney,
175 E. Houston St., 7th Floor, San Antonio, Texas 78205, Telecopy Number: (210)
351-3467.
14. This Agreement shall be binding upon the Underwriters, the Company
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Act and (b) the indemnity agreement of the Underwriters contained in
Paragraph 9 hereof shall be deemed to be for the benefit of directors of the
Company, officers of the Company who have signed the Registration Statement and
any person controlling the Company. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Paragraph 14, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
15. For purposes of this Agreement, "business day" means any day on which
the New York Stock Exchange, Inc. is open for trading.
16. This Agreement may be executed by the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
-19-
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAW OF NEW YORK.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement shall represent a binding agreement between the Company and the
several Underwriters.
Very truly yours,
PACIFIC BELL
By: ________________________
Title:
-20-
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
For itself and as Representative of the
several Underwriters named in
Schedule II to the foregoing Agreement.
-21-
SCHEDULE I
Underwriting Agreement, dated ________ __, 1997
Registration Statement No. 333-_____
Representative and Address:
Underwritten Securities:
Indenture, dated as of October 7, 1997, from Pacific Bell to The Bank of
New York, as Trustee (the "Indenture").
Designations:
Principal Amounts:
Dates of Maturity:
Interest Rates:
Purchase Prices:
Redemption Provisions:
Form and Authorized
Denominations:
Delivery Date, Time
and Location:
Specified Funds for
Payment of Purchase Price:
The Delayed Delivery Contracts
shall have the following terms:
-2-
SCHEDULE II
Principal
Underwriter Amount
----------- --------------
Total....................................... $=============
EXHIBIT A
PACIFIC BELL
DELAYED DELIVERY CONTRACT
, 199
Pacific Bell
175 E. Houston
San Antonio, Texas 78205
Dear Sirs:
The undersigned hereby agrees to purchase from Pacific Bell, a
California corporation (the "Company"), and the Company hereby agrees to sell to
the undersigned, $ principal amount of the Company's above-captioned
securities ("Securities"), offered by the Company's prospectus dated , 199 , as
supplemented by the prospectus supplement dated , 199 (collectively, the
"Prospectus"), receipt of a copy of which is hereby acknowledged, at a purchase
price of % of the principal amount thereof plus accrued interest from , 199 to
the Delivery Date (as defined in the next paragraph) and on the further terms
and conditions set forth in this Contract.
Payment for and delivery of the Securities to be purchased by the
undersigned shall be made on , 199 , herein called the "Delivery Date."
At 10:00 A.M., New York time, on the Delivery Date, the Securities to
be purchased by the undersigned hereunder will be delivered by the Company to
the undersigned, and the undersigned will accept delivery of such Securities and
will make payment to the Company of the purchase price therefor at the office of
The Bank of New York. Payment will be by certified or official bank check
payable in next-day funds settled through the New York Clearing House, or such
other Clearing House as the Company may designate, to or upon the order of the
Company. The Securities will be delivered in such authorized forms and
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than two
full business days prior to the Delivery Date or, if the undersigned fails to
make a timely designation in the foregoing manner, in the form of one definitive
fully
registered certificate representing the Securities in the above principal
amount, registered in the name of the undersigned.
If any of the Securities are to be delivered to the undersigned in
bearer form, (i) the undersigned hereby represents that it is not a U.S. person
(or if it is a U.S. person it is a qualified financial institution) and agrees
that it will not offer to sell such Securities, directly or indirectly, to any
U.S. person other than a qualified financial institution and (ii) if the
undersigned is a dealer, that the undersigned also (A) represents that it has
not offered or sold and agrees that it will not offer, sell, or deliver any such
Securities within the United States or, directly or indirectly, to any U.S.
person other than a qualified financial institution and is not purchasing any of
such Securities for the account of any such U.S. person and (B) will deliver to
all purchasers of such Securities from it a written confirmation, containing a
statement to the effect set forth in clauses (i) and (ii) above. As used herein,
"United States" means the United States of America (including the States and the
District of Columbia), its territories, its possessions and all other areas
subject to its jurisdiction; "U.S. person" means a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in or under the laws of the United States or a political subdivision thereof, or
an estate or trust the income of which is subject to United States Federal
income taxation regardless of its source; and "qualified financial institution"
means a financial institution (as defined in Section 1.165-12(c)(1)(v) of the
Treasury Department regulations) that provides a written statement that it will
comply with Section 165(j)(3)(A), (B), or (C) of the Code and the regulations
thereunder. Delivery of Securities in bearer form shall be made only upon
receipt of a certificate manually signed by the undersigned, containing
substantially the following:
"This is to certify that as of the date hereof (the date of
delivery of the Securities in bearer form), the above-captioned
Securities which are to be delivered to the undersigned in bearer form
are not being acquired by or on behalf of a U.S. person, or for offer to
resell or for resale to a U.S. person or, if any beneficial owner of the
Securities is a U.S. person, such U.S. person is a financial institution
(as defined in Treasury Department Regulations Section 1.165-12(c)(1)(v))
or acquiring through a financial institution and that the Securities are
held by a financial institution that has agreed to comply with the
requirements of Section 165(j)(3)(A), (B), or (C) of the Internal Revenue
Code of 1986, and the regulations thereunder. If the undersigned is a
clearing organization, the undersigned represents that the certificate is
based on statements provided to it by its member organizations. As used
herein, "United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions
and all other areas subject to its jurisdiction; "U.S. person" means a
citizen or resident of the United States, a corporation, partnership or
other entity created or organized in or under the laws of the United
States or a political subdivision thereof, or an estate or trust the
income of which is subject to United States Federal
-2-
income taxation regardless of its source; and a "clearing organization"
means an entity which is in the business of holding obligations for
member organizations and transferring obligations among such members by
credit or debit to the account of a member without the necessity of
physical delivery of the obligation. If the undersigned is a dealer, the
undersigned agrees to obtain a similar certificate from each person
entitled to delivery of any of the above-captioned Securities in bearer
form purchased from it. However, if the undersigned has actual knowledge
that the information contained in such certificate is false, the
undersigned will not deliver a Security in temporary or definitive bearer
form to the person who signed such certificate notwithstanding the
delivery of such certificate to the undersigned. The undersigned will be
deemed to have actual knowledge that the beneficial owner is a U.S.
person for this purpose if the undersigned has a U.S. address for the
beneficial owner of the Security."
This Contract will terminate and be of no further force and effect
after , unless (i) on or before such date it shall have been executed
and delivered by both parties hereto and (ii) the Company shall have sold to
the Underwriters named in the Prospectus the Immediate Delivery Underwritten
Securities (as defined in the Underwriting Agreement referred to in the
Prospectus). The Company will mail or deliver to the undersigned at its address
set forth below a notice to that effect, stating the date of the occurrence
thereof, accompanied by copies of the opinion of counsel for the Company
delivered to such Underwriters pursuant to Paragraph 11(d) of the Underwriting
Agreement.
The obligation of the undersigned to accept delivery of and make
payment for the Securities on the Delivery Date will be subject to the condition
that the Securities shall not, on the Delivery Date, be an investment prohibited
by the laws of the jurisdiction to which the undersigned is subject, the
undersigned hereby representing that such an investment is not so prohibited on
the date hereof.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors but will not be assignable by
either party hereto without the written consent of the other.
This Contract may be executed by any of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
It is understood that acceptance of any Delayed Delivery Contract (as
defined in said Underwriting Agreement) is in the Company's sole discretion and,
without limiting the foregoing, need not be on a first-come, first-served basis.
If this Contract is acceptable to the Company, it is requested that the Company
sign the form of acceptance below and
-3-
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and
the undersigned when such counterpart is so mailed or delivered.
Very truly yours,
By_________________________________
___________________________________
Title
___________________________________
___________________________________
Address
Accepted as of , 199
PACIFIC BELL
By_________________________________
Title:
-4-