GTE FLORIDA INCORPORATED AND THE BANK OF NEW YORK as Trustee FIRST SUPPLEMENTAL INDENTURE Dated as of January 1, 1998 TO INDENTURE Dated as of November 1, 1993 FIRST SUPPLEMENTAL INDENTURE, dated as of the 1st day of January, 1998 (herein called the...
EXHIBIT 4.5
_____________________________________________________________________________
GTE FLORIDA INCORPORATED
AND
THE BANK OF NEW YORK
as Trustee
__________
Dated as of January 1, 1998
TO
INDENTURE
Dated as of November 1, 1993
__________
_____________________________________________________________________________
FIRST SUPPLEMENTAL INDENTURE, dated as of the 1st day of January, 1998
(herein called the "First Supplemental Indenture"), between GTE FLORIDA
INCORPORATED, a corporation duly organized and existing under the laws of the
State of Florida (hereinafter referred to as the "Company"), and THE BANK OF NEW
YORK, a banking corporation duly organized and existing under the laws of the
State of New York (hereinafter referred to as the "Trustee") (as successor
trustee to NationsBank of Georgia, National Association), as Trustee under the
Indenture dated as of November 1, 1993, between the Company and the Trustee
(hereinafter referred to as the "Original Indenture"). Capitalized terms used
in this First Supplemental Indenture and not otherwise defined herein shall have
the meanings set forth in the Original Indenture.
WHEREAS, in accordance with Section 9.01(c) of the Original Indenture, the
Company and the Trustee may enter into supplemental indentures to the Original
Indenture without the consent of the Securityholders to cure any ambiguity or to
correct or supplement any provision which may be defective or inconsistent with
the Original Indenture or any supplemental indenture, or to make such other
provisions in regard to matters or questions arising under the Original
Indenture as shall not be inconsistent with the provisions of the Original
Indenture and not adversely affect the interests of the holders of the
Securities of any series; and
WHEREAS, the Company desires to amend the Original Indenture in accordance
with Section 9.01(c) and has determined that the requirements of Section 9.01(c)
have been satisfied and has requested the Trustee to join with it in the
execution and delivery of this First Supplemental Indenture; all requirements
necessary to make this First Supplemental Indenture a valid instrument, in
accordance with its terms, have been met; and the execution and delivery hereof
have been in all respects duly authorized;
NOW, THEREFORE, for good and valuable consideration the sufficiency of
which is hereby recognized, the Company covenants and agrees with the Trustee as
follows:
ARTICLE ONE
AMENDMENTS TO TERMS OF THE INDENTURE
Section 1.01 CERTAIN DEFINITIONS. The Company and Trustee hereby amend
Section 1.01 of the Original Indenture pursuant to Section 9.01(c) of the
Original Indenture to add the following definitions in alphabetical order:
"Depository:
The term "Depository" shall mean, with respect to Securities of any series
for which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Securities and Exchange Act of 1934, as amended, or other applicable statute or
regulation, which, in each case, shall be designated by the Company pursuant to
either Section 2.01 or 2.11."
and
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"Global Security:
The term "Global Security" shall mean, with respect to any series of
Securities, one or more Securities executed by the Company and authenticated and
delivered by the Trustee to the Depository or pursuant to the Depository's
written instruction (if acceptable to the Trustee) held by the Trustee as
custodian for the Depository, all in accordance with this Indenture, which shall
be registered in the name of the Depository or its nominee."
Section 1.02 TERMS OF THE SECURITIES. The Company and Trustee hereby
amend Section 2.01 of the Original Indenture pursuant to Section 9.01(c) of the
Original Indenture to add a new paragraph (9) to read as follows:
"(9) whether the Securities of the series are issuable as a Global
Security and, in such case, the identity of the Depository for such series; and"
and to renumber the existing paragraph (9) as paragraph (10).
Section 1.03 REGULAR RECORD DATE. The Company and Trustee hereby
amend the next to last paragraph of Section 2.03 of the Original Indenture in
its entirety pursuant to Section 9.01(c) of the Original Indenture, to read as
follows:
"Unless otherwise set forth in a Board Resolution or one or more
indentures supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term "regular record date" as
used in this Section with respect to a series of Securities with respect to any
interest payment date for such series shall mean either the fifteenth day of the
month immediately preceding the month in which an interest payment date
established for such series pursuant to Section 2.01 hereof shall occur, if such
interest payment date is the first day of a month, or the first day of the month
in which an interest payment date established for such series pursuant to
Section 2.01 hereof shall occur, if such interest payment date is the fifteenth
day of a month, whether or not such date is a business day."
Section 1.04 EXCHANGE OF SECURITIES. The Company and Trustee hereby
amend Section 2.05 of the Original Indenture pursuant to Section 9.01(c) of the
Original Indenture to insert a new paragraph at the end of Section 2.05 which
reads as follows:
"The provisions of this Section 2.05 are, with respect to any Global
Security, subject to Section 2.11 hereof."
Section 1.05 GLOBAL SECURITIES. The Company and Trustee hereby amend
Article II of the Original Indenture pursuant to Section 9.01(c) of the Original
Indenture to insert a new Section 2.11 at the end of Article II which reads as
follows:
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"Section 2.11 (a) If the Company shall establish pursuant to Section
2.01 that the Securities of a particular series are to be issued as a
Global Security, then the Company shall execute and the Trustee shall, in
accordance with Section 2.04, authenticate and deliver, a Global Security
which (i) shall represent, and shall be denominated in an amount equal to
the aggregate principal amount of, all of the Outstanding Securities of
such series, (ii) shall be registered in the name of the Depository or its
nominee, (iii) shall be delivered by the Trustee to the Depository or
pursuant to the Depository's written instruction or (if acceptable to the
Trustee) held by the Trustee as custodian for the Depository, and (iv)
shall bear a legend substantially to the following effect: 'Except as
otherwise provided in Section 2.11 of the Indenture, this Security may be
transferred, in whole but not in part, only to another nominee of the
Depository or to a successor Depository or to a nominee of such successor
Depository'.
(b) Notwithstanding the provisions of Section 2.05, the Global
Security of a series may be transferred, in whole but not in part and in
the manner provided in Section 2.05, only to another nominee of the
Depository for such series, or to a successor Depository for such series
selected or approved by the Company or to a nominee of such successor
Depository.
(c) If at any time the Depository for a series of Securities notifies
the Company that it is unwilling or unable to continue as Depository for
such series or if at any time the Depository for such series shall no
longer be registered or in good standing under the Securities Exchange Act
of 1934, as amended, or other applicable statute or regulation and a
successor Depository for such series is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, this Section 2.11 shall no longer be
applicable to the Securities of such series and the Company will execute,
and subject to Section 2.05, the Trustee will authenticate and deliver,
Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such
Global Securities. In addition, the Company may at any time determine that
the Securities of any series shall no longer be represented by a Global
Security and that the provisions of this Section 2.11 shall no longer apply
to the Securities of such series. In such event the Company will execute
and subject to Section 2.05, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will authenticate
and deliver Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security of such series in
exchange for such Global Security. Upon the exchange of the Global Security
for such Securities in definitive registered form without coupons, in
authorized denominations, the Global Security shall be canceled by the
Trustee. Such Securities in definitive registered form issued in exchange
for the Global Security pursuant to this Section 2.11(c) shall be
registered in such names and in such authorized denominations as the
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Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the Depository for delivery to the persons in
whose names such Securities are so registered."
Section 1.06 NOTICE OF DEFAULT. The Company and Trustee hereby amend the
first paragraph of Section 6.07 of the Original Indenture in its entirety,
pursuant to Section 9.01(c) of the Original Indenture for the benefit of all
Securityholders, to read as follows:
"The Trustee shall, within 90 days after the occurrence of a default with
respect to a particular series, transmit by mail, first class postage
prepaid, to the holders of Securities of that series, as their names and
addresses appear upon the Security Register, notice of all defaults with
respect to that series known to the Trustee, unless such defaults shall
have been cured before the giving of such notice (the term "defaults" for
the purposes of this Section being hereby defined to be the events
specified in subsections (1), (2), (3), (4) and (5) of Section 6.01(a), not
including any periods of grace provided for therein and irrespective of the
giving of notice provided for by subsection (3) of Section 6.01(a);
provided, that, except in the case of default in the payment of the
principal of (or premium, if any) or interest on any of the Securities of
that series or in the payment of any sinking fund or analogous fund
installment established with respect to that series, the Trustee shall be
protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors
and/or responsible officers, of the Trustee in good faith determine that
the withholding of such notice is in the interests of the Securityholders
of Securities of that series; provided further, that in the case of any
default of the character specified in Section 6.01(a)(3) with respect to
Securities of that series no notice shall be given until at least 30 days
after the occurrence thereof."
ARTICLE TWO
MISCELLANEOUS
Section 2.01 EFFECTIVENESS OF PROVISIONS. The provisions of this First
Supplemental Indenture shall be effective only with respect to series of
Securities issued after the date hereof.
Section 2.02 EXECUTION OF SUPPLEMENTAL INDENTURE. This First Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Original Indenture and, as provided in the Original Indenture, this First
Supplemental Indenture forms a part thereof.
Section 2.03 CONFLICT WITH TRUST INDENTURE ACT. If and to the extent that
any provision hereof limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, as amended,
such imposed duties shall control.
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Section 2.04 SUCCESSORS AND ASSIGNS. All covenants and agreements in this
First Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 2.05 SEPARABILITY CLAUSE. In case any one or more of the
provisions contained in this First Supplemental Indenture, the Original
Indenture or in the Securities of any series shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this First
Supplemental Indenture, the Original Indenture or of such Securities, but this
First Supplemental Indenture, the Original Indenture and such Securities shall
be construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.
Section 2.06 BENEFITS OF FIRST SUPPLEMENTAL INDENTURE. Nothing in this
First Supplemental Indenture or in the Original Indenture, express or implied,
shall give to any person, other than the parties hereto and their successors
hereunder and the Securityholders (to the extent specified herein or therein),
any benefit or any legal or equitable right, remedy or claim under this First
Supplemental Indenture.
Section 2.07 GOVERNING LAW. This First Supplemental Indenture shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State.
Section 2.08 EXECUTION AND COUNTERPARTS. This First Supplemental
Indenture may be executed in any number of counterparts, each of which shall be
an original; but such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
GTE FLORIDA INCORPORATED
By _____________________________
Title:
Attest:
By _____________________________
Secretary
THE BANK OF NEW YORK,
as TRUSTEE
By _____________________________
Title:
Attest:
By _____________________________
Title: