Exhibit 1.1
EXECUTION COPY
CENTURYTEL, INC.
$350,000,000 5.00% Senior Notes, Series M, due 2015
UNDERWRITING AGREEMENT
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February 9, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ Brothers Inc.
Lazard Freres & Co. LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
SunTrust Capital Markets, Inc.
Wachovia Capital Markets, LLC
The ▇▇▇▇▇▇▇▇ Capital Group, L.P.
c/o Banc of America Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
CenturyTel, Inc., a Louisiana corporation (the "Company"), proposes to
issue and sell to you (individually, an "Underwriter" and collectively, the
"Underwriters") an aggregate of $350,000,000 principal amount of the Company's
5.00% Senior Notes, Series M, due 2015 (the "Securities") to be issued pursuant
to an Indenture dated as of March 31, 1994, between the Company and Regions Bank
(successor-in-interest to First American Bank & Trust of Louisiana and Regions
Bank of Louisiana), as trustee (the "Trustee"), as supplemented by supplemental
indentures thereto, including the Third Supplemental Indenture (the
"Supplemental Indenture") dated as of February 14, 2005 (the "Indenture").
The purchase price for the Securities to be paid by the Underwriters
shall be agreed upon by the Company and the Underwriters and such agreement
shall be set forth in a separate written instrument substantially in the form of
Exhibit A hereto (the "Price Determination Agreement"). The Price Determination
Agreement may take the form of an exchange of any standard form of written
communication among the Company and the Underwriters and shall specify such
applicable information as is indicated in Exhibit A hereto. The offering of the
Securities will be governed by this Agreement, as supplemented by the Price
Determination Agreement. From and after the date of the execution and delivery
of the Price Determination Agreement, this Agreement shall be deemed to
incorporate, and, unless the context otherwise indicates, all references
contained herein or in the exhibits hereto to "this Agreement", the
"Underwriting Agreement" and to the phrase "herein" shall be deemed to include
the Price Determination Agreement.
The Company confirms as follows its agreements with the several
Underwriters.
1. Agreement to Sell and Purchase. (a) On the basis of the
representations, warranties and agreements of the Company herein contained and
subject to all the terms and conditions of this Agreement, the Company agrees to
sell to each of the Underwriters, and the Underwriters agree, severally and not
jointly, to purchase from the Company, the principal amount of the Securities
set forth opposite the name of such Underwriter in Schedule I hereto, plus such
additional principal amount of Securities which any Underwriter may become
obligated to purchase pursuant to Section 7 hereof, all at the purchase price,
to be agreed upon by the Underwriters and the Company in accordance with Section
1(b) and as set forth in the Price Determination Agreement.
(b) The purchase price for the Securities to be paid by the several
Underwriters shall be agreed upon and set forth in the Price Determination
Agreement, which shall be dated the Execution Date (as hereinafter defined), and
a Final Prospectus (as hereinafter defined) containing such pricing information
shall be filed pursuant to 424(b) under the Securities Act of 1933, as amended
(the "Act").
2. Delivery and Payment. Delivery of the Securities shall be made to the
Underwriters for the account of each Underwriter in book-entry form through the
facilities of The Depository Trust Company ("DTC") against payment of the
purchase price therefor by such Underwriter or on its behalf therefor by wire
transfer in same day funds to the Company or its order at the office of
Pillsbury Winthrop LLP, New York, New York or at such other location as the
parties may agree. Such payment shall be made at 10:00 a.m., New York City time,
on the third business day following the date of this Agreement or at such time
on such other date, not later than five business days after the date of this
Agreement, as may be agreed upon by the Company and the Underwriters (such date
is hereinafter referred to as the "Closing Date").
The Securities to be purchased by each Underwriter hereunder will be
represented by one or more registered global Securities in book-entry form,
which will be deposited by or on behalf of the Company with DTC or its
designated custodian. The certificates for the Securities will be made available
for examination and packaging by Banc of America Securities LLC, ▇.▇. ▇▇▇▇▇▇
Securities Inc. and ▇▇▇▇▇▇ Brothers Inc. (the "Representatives") in New York
City not later than 10:00 a.m. (New York City time) on the business day prior to
the Closing Date.
The cost of original issue tax stamps, if any, in connection with the
issuance and sale of the Securities by the Company to the respective
Underwriters shall be borne by the Company. The Company will pay and save each
Underwriter and any subsequent holder of the Securities harmless from any and
all liabilities with respect to or resulting from any failure or delay in paying
federal and state stamp and other issuance taxes, if any, which may be payable
or determined to be payable in connection with the original issuance or sale to
such Underwriter of the Securities.
3. Representations and Warranties of the Company. The Company
represents and warrants to the several Underwriters as of the date hereof
and as of the Closing Date, and covenants with the several Underwriters, that:
(a) The Company meets the requirements for use of Form S-3. A
registration statement (Registration No. 333-84276) on Form S-3 relating to the
registration of $3 billion of various securities described in the Basic
Prospectus (as hereinafter defined), including the Securities and the offering
thereof from time to time in accordance with Rule 415 under the Act, including a
Basic Prospectus and such amendments to such registration statement as may have
been required to the date of this Agreement, has been (i) prepared by the
Company under the provisions of the Act, and the rules and regulations
thereunder (collectively referred to as the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission"); (ii) filed with the
Commission; and (iii) declared effective by the Commission; and, prior to the
offer and sale of the Securities, $2 billion aggregate offering price of
securities remains unsold under the Registration Statement. No stop order
suspending the effectiveness of the Registration Statement or any part thereof
has been issued under the Act and no proceedings for that purpose have been
instituted or threatened by the Commission, and any request on the part of the
Commission for additional information has been complied with by the Company.
Copies of such registration statement and amendments, if any, and of any
Preliminary Prospectus (as hereinafter defined) used by the Company have been
delivered or made available to the Underwriters. The offering of the Securities
is a Delayed Offering (as hereinafter defined) and, although the Basic
Prospectus may not include all the information with respect to the Securities
and the offering thereof required by the Act and the Rules and Regulations to be
included in the Final Prospectus, such Basic Prospectus includes all such
information required by the Act and the Rules and Regulations to be included
therein as of the date the Registration Statement initially became effective.
The Company will file the Final Prospectus in accordance with Rule 424(b) of the
Rules and Regulations. As filed, the Final Prospectus shall include all required
information with respect to the Securities and the offering thereof and, except
to the extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior to the
Execution Date or, to the extent not completed at the Execution Date, shall
contain such specific additional information and other changes (beyond that
contained in such Basic Prospectus and any Preliminary Prospectus) as the
Company has advised you, prior to the Execution Date.
The term "Registration Statement" means the registration statement of
the Company, Registration No. 333-84276, referred to in the immediately
preceding paragraph, as amended or supplemented to the date hereof, including
financial statements and other documents incorporated by reference therein and
all exhibits, each as amended, and, in the event any post-effective amendment to
such registration statement becomes effective prior to the Execution Date, shall
also mean such registration statement as so amended. The term "Effective Date"
means the later of the date the Registration Statement initially became
effective, the date that any post-effective amendment or amendments thereto
became or become effective or the date of the filing of the Company's most
recent Annual Report on Form 10-K. The term "Execution Date" means the date that
this Agreement is executed and delivered by the parties hereto, as reflected on
the first page hereof. The term "Basic Prospectus" means the prospectus
contained in and forming a part of the Registration Statement as of the date the
Registration Statement initially became effective, including documents
incorporated or documents deemed to be incorporated therein. In the event that
(i) the Basic Prospectus shall have been amended, revised or supplemented (but
excluding supplements to the Basic Prospectus relating solely to securities
other than the Securities) on or prior to the Execution Date or (ii) the Company
shall have filed documents pursuant to Section 13, 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), after the time the
Registration Statement became effective and on or prior to the Execution Date
(but excluding documents incorporated therein by reference relating solely to
securities other than the Securities) which are deemed to be incorporated by
reference in the Basic Prospectus pursuant to Item 12 of Form S-3, the term
"Basic Prospectus" as used herein shall also mean such prospectus as so amended,
revised or supplemented and reflecting such incorporation by reference. The term
"Preliminary Prospectus" means any preliminary prospectus supplement which
describes the Securities and the offering thereof and is used prior to the
filing of the Final Prospectus, together with the Basic Prospectus. The term
"Final Prospectus" means the prospectus supplement relating to the Securities as
first filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations after the Execution Date, together with the Basic Prospectus. The
term "Delayed Offering" means an offering of securities pursuant to Rule 415
under the Rules and Regulations which does not commence promptly after the
effective date of a registration statement. For purposes of this Agreement, the
words "amend," "amendment," "amended," "supplement" or "supplemented" with
respect to the Registration Statement or the Final Prospectus shall mean (i)
amendments or supplements to the Registration Statement or the Final Prospectus
and (ii) documents deemed to be incorporated by reference in to the Final
Prospectus, in each case filed with the Commission or sent to prospective
purchasers of the Securities after the Execution Date and prior to the
completion of the distribution of the Securities; and all references in this
Agreement to financial statements and schedules and other information which is
"contained," "set forth," "included" or "stated" (or other references of like
import) in the Registration Statement or the Final Prospectus shall be deemed to
mean and include all such financial statements and schedules and other
information that is incorporated by reference in the Registration Statement or
the Final Prospectus.
(b) On the Effective Date, the Registration Statement did and when
any Preliminary Prospectus and the Final Prospectus is or was first filed with
the Commission pursuant to Rule 424(b), the Final Prospectus (and any supplement
thereto), including the financial statements included or incorporated by
reference in the Final Prospectus, will or did comply in all material respects
with the applicable provisions of the Act, the Rules and Regulations, the
Exchange Act, the rules and regulations thereunder (the "Exchange Act Rules and
Regulations"), the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the rules and regulations thereunder (the "Trust Indenture Act Rules
and Regulations") and will contain all information required to be included
therein in accordance with the Act, the Rules and Regulations, the Exchange Act
and the Exchange Act Rules and Regulations. On the Effective Date, the
Registration Statement 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. At the date the Final Prospectus
(together with any supplement thereto) is first filed with the Commission
pursuant to Rule 424(b) and at the Closing Date, the Final 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. At the date that any
Preliminary Prospectus is delivered to the Underwriters for their use in
connection with the marketing of the Securities, such Preliminary Prospectus did
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 light of the
circumstances under which they were made, not misleading. The foregoing
representations and warranties in this Section 3(b) do not apply to any
statements or omissions made in reliance on and in conformity with information
furnished in writing to the Company by an Underwriter specifically for inclusion
in the Registration Statement or the Final Prospectus (or any supplement
thereto). On the Effective Date, the date the Final Prospectus is first filed
with the Commission pursuant to Rule 424(b), and at all subsequent times to and
including the Closing Date, the Indenture did or will comply with all applicable
provisions of the Trust Indenture Act and the Trust Indenture Act Rules and
Regulations.
(c) The documents which are incorporated by reference in the Basic
Prospectus, any Preliminary Prospectus and the Final Prospectus or from which
information is so incorporated by reference, when they became effective or were
filed with the Commission, as the case may be, complied in all material respects
with the requirements of the Act, the Rules and Regulations, the Exchange Act or
the Exchange Act Rules and Regulations, as applicable; and any documents so
filed and incorporated by reference subsequent to the Execution Date shall, when
they are filed with the Commission, conform in all material respects with the
requirements of the Act, the Rules and Regulations, the Exchange Act or the
Exchange Act Rules and Regulations, as applicable.
(d) Each of the Company and each of its subsidiaries listed on
Schedule II hereto (the "Subsidiaries") is, and at the Closing Date will be, a
corporation, limited liability company or partnership duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization. Each of the Company and each of the Subsidiaries has, and at the
Closing Date will have, full power and authority to conduct all the activities
conducted by it, to own or lease all the assets owned or leased by it and to
conduct its business as described in the Registration Statement and the Final
Prospectus. Each of the Company and each of the Subsidiaries is, and at the
Closing Date will be, duly licensed or qualified to do business and in good
standing as a foreign corporation or limited liability company in all
jurisdictions in which the nature of the activities conducted by it or the
character of the assets owned or leased by it makes such licensing or
qualification necessary except where the failure to be so qualified or licensed
would not have a material adverse affect on the business, properties, business
prospects, condition (financial or otherwise) or results of operations of the
Company and its subsidiaries, taken as a whole (a "Material Adverse Affect").
For purposes of this Agreement, "subsidiaries" shall mean (a) the Company's
direct and indirect majority-owned corporate subsidiaries (b) the Company's
direct and indirect majority owned limited liability companies and (c) the
partnerships, joint ventures and other entities of which the Company or any
subsidiary is the majority owner or managing general partner. Complete and
correct copies of the certificate of incorporation and of the by-laws or other
organizational documents of the Company and each of the Subsidiaries and all
amendments thereto have been made available to the Underwriters, and no changes
therein will be made subsequent to the Execution Date and prior to the Closing
Date.
(e) The Securities have been duly and validly authorized and, when
authenticated by the Trustee and issued, delivered and sold in accordance with
this Agreement and the Indenture, will have been duly and validly executed,
authenticated, issued and delivered and will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms and entitled to the benefits provided by the Indenture
except (i) that such enforcement may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws, now or
hereafter in effect, relating to creditors' rights generally and (ii) that the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(f) The description of the Securities in the Registration Statement
and the Final Prospectus is, and at the Closing Date will be, complete and
accurate in all material respects and, insofar as such description contains
statements constituting a summary of the legal matters or documents referred to
therein, such description fairly summarizes the information referred to therein.
(g) The financial statements and schedules included or incorporated
by reference in the Registration Statement or the Final Prospectus present
fairly the consolidated financial condition of the Company as of the respective
dates thereof and the consolidated results of operations and cash flows of the
Company for the respective periods covered thereby, all in conformity with
United States generally accepted accounting principles applied on a consistent
basis throughout the entire period involved, except as otherwise disclosed in
the Registration Statement or the Final Prospectus. The selected consolidated
financial data included in the Registration Statement or the Final Prospectus
present fairly the information shown therein and have been compiled on a basis
consistent with that of the audited consolidated financial statements of the
Company included or incorporated by reference in the Registration Statement or
the Final Prospectus. No other financial statements or schedules of the Company
are required by the Act, the Rules and Regulations, the Exchange Act or the
Exchange Act Rules and Regulations to be included in or incorporated by
reference in the Registration Statement or the Final Prospectus. KPMG LLP
("KPMG"), who has audited certain financial statements and schedules
incorporated by reference in the Registration Statement and the Final
Prospectus, are independent registered public accountants with respect to the
Company, as required by the Act and the Rules and Regulations.
(h) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Final Prospectus any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Final Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the Final
Prospectus, there has not been any change in the capital stock or long-term debt
of the Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Final Prospectus.
(i) The Company is not, and after giving effect to the issuance and
sale of the Securities and the application of the proceeds thereof, will not be,
an "investment company" or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are defined
in the Investment Company Act of 1940, as amended.
(j) Except as set forth in the Registration Statement and the Final
Prospectus, there are no actions, suits or proceedings pending or, to the best
of the Company's knowledge, threatened against or affecting the Company or any
of its subsidiaries or any of their respective officers in their capacity as
such, before or by any federal or state court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, that is
likely to have a Material Adverse Affect. Except as set forth in the
Registration Statement and the Final Prospectus, all actions, suits or
proceedings now pending against the Company or any of its subsidiaries, or any
of their respective officers in their capacities as such, before any Federal or
state court, commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, if decided or resolved in a manner
unfavorable to the Company or any of its subsidiaries, would not be likely to,
individually or in the aggregate, have a Material Adverse Affect.
(k) The Company and each of the Subsidiaries has, and at the
Closing Date will have, (i) such franchises, certificates, authorities or
permits issued by the appropriate state, federal or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them, other than
those the absence of which would not be likely to have a Material Adverse
Affect, and neither the Company nor any of the Subsidiaries has received any
written notice of proceedings relating to the revocation or modification of any
such franchise, certificate, authority or permit which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
be likely to have a Material Adverse Affect, (ii) complied in all material
respects with all laws, statutes, ordinances, rules, regulations, orders or
decrees of any court, governmental body or regulatory authority or
administrative agency having jurisdiction over the Company or any Subsidiary or
any of the property or assets of the Company or any Subsidiary (including,
without limitation, any such laws, statutes, ordinances, rules, regulations,
orders or decrees with respect to environmental protection or the release,
handling, treatment, storage or disposal of hazardous substances or toxic
wastes), the failure to comply with which would be likely to have a Material
Adverse Affect, and (iii) performed in all material respects all of its
obligations required to be performed by it under any material contract or other
instrument to which it is a party or by which its property is bound or affected,
and is not, and at the Closing Date, will not be, in default under any such
contract or instrument the effect of which would be likely to have a Material
Adverse Affect. To the best knowledge of the Company, no other party under any
material contract or other instrument to which it or any Subsidiary is a party
is in default in any respect thereunder, except for any such defaults (alone or
collectively) that would not be likely to have a Material Adverse Affect;
provided that it is understood and agreed that neither the Company nor any
Subsidiary has undertaken any special investigation to determine compliance by
such other parties under any such contract or other instrument. The Company is
not, and at the Closing Date will not be, in violation of any provision of its
articles of incorporation or by-laws or in default in any material respect under
any agreement or instrument evidencing indebtedness for borrowed money. The
Subsidiaries are not, and at the Closing Date, will not be, in violation of any
material provision of their respective articles of incorporation or by-laws (or
comparable organizational documents) or in default under any agreement or
instrument evidencing indebtedness for borrowed money (A) as a result of the
failure to make one or more payments in excess of $5 million in the aggregate
that are due and owed thereunder, or (B) otherwise in any respect which is
likely to have a Material Adverse Affect.
(l) No consent, approval, authorization or order of, or any filing,
registration, qualification or declaration with, any court or governmental
agency or body is required for (i) the execution, delivery or performance of
this Agreement, the Securities or the Supplemental Indenture by the Company,
(ii) the authorization, offer, issuance, transfer, sale or delivery of the
Securities by the Company in accordance with this Agreement or (iii) the
consummation by the Company of the transactions on its part contemplated herein
and by the Indenture, except such as may have been obtained, or on or prior to
the Closing Date will be obtained, under the Act, the Rules and Regulations, the
Exchange Act, the Exchange Act Rules and Regulations, the Trust Indenture Act or
the Trust Indenture Act Rules and Regulations and such as may be required under
foreign or state securities or blue sky laws or the by-laws and rules of the
National Association of Securities Dealers, Inc. (the "NASD") in connection with
the purchase and distribution of the Securities by the Underwriters.
(m) The Company has full corporate power and authority to enter
into this Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and, when duly executed and delivered by the
Underwriters, will constitute a valid and binding agreement of the Company and
will be enforceable against the Company in accordance with the terms hereof,
except (i) that such enforcement may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws, now or
hereafter in effect, relating to creditors' rights generally, (ii) that the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought and (iii) rights to
indemnity and contribution hereunder may be limited by federal or state laws
relating to securities or the policies underlying such laws. The Indenture has
been duly authorized, executed and delivered by the Company and the Trustee and
has been qualified under the Trust Indenture Act and constitutes a valid and
binding agreement of the Company enforceable against the Company in accordance
with its terms, except (i) that such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws, now or hereafter
in effect, relating to creditors' rights generally and (ii) that the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought and (iii) rights to indemnity and
contribution hereunder may be limited by federal or state laws relating to
securities or the policies underlying such laws.
(n) The issue and sale of the Securities, the execution, delivery
and performance by the Company of this Agreement and the Indenture and the
consummation of the transactions contemplated hereby and thereby will not (i)
result in a violation of any of the terms or provisions of the articles of
incorporation or by-laws (or comparable instruments) of the Company or any of
the Subsidiaries, or (ii) violate or conflict with any franchise or any
judgment, ruling, decree, order, statute, rule or regulation of any court or
other governmental agency or body applicable to the business or properties of
the Company or any of the Subsidiaries or (iii) result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets of the
Company or any of the Subsidiaries pursuant to the terms or provisions of, or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or give any other party a right to terminate any of
its obligations under, or result in the acceleration of any obligation under,
any indenture, mortgage, deed of trust, voting trust agreement, loan agreement,
bond, debenture, note agreement or other evidence of indebtedness, lease,
contract or other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which the Company or any of the Subsidiaries or
any of their respective properties is or are bound or affected (the "applicable
agreements"), other than with respect to this clause (iii) any breaches,
violations, defaults, terminations or accelerations with respect to any
applicable agreement that will not, or are not likely to, have a Material
Adverse Affect.
(o) The Company and each of the Subsidiaries has good and
marketable title to all franchises, properties and assets owned by it, which are
material to the business or operations of the Company and its subsidiaries,
taken as a whole (including without limitation the stock or other equity
interests of all subsidiaries), free and clear of all liens, charges,
encumbrances or restrictions, except such as are described in the Final
Prospectus and except immaterial liens which do not affect the operations or
financial condition of the Company. The Company and each of the Subsidiaries has
valid, subsisting and enforceable leases for the properties leased by it, with
such exceptions as would not materially interfere with the business or
operations of the Company and it subsidiaries, taken as a whole.
(p) All existing material contracts described in the Final
Prospectus to which the Company or any of the Subsidiaries is a party have been
duly authorized, executed and delivered by the Company or such Subsidiary,
constitute valid and binding agreements of the Company or such Subsidiary and
are enforceable against the Company or such Subsidiary in accordance with the
terms thereof, except (i) that such enforcement may be subject to bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws, now or hereafter in effect, relating to creditors' rights generally and
(ii) that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought. Such described
contracts are the only contracts required to be described in the Final
Prospectus by the Act and the Rules and Regulations.
(q) No statement, representation, warranty or covenant made by the
Company in this Agreement or the Indenture or made in any certificate or
document required by this Agreement to be delivered to the Underwriters was or
will be, when made, inaccurate, untrue or incorrect in any material respect.
(r) No holder of securities of the Company has rights to the
registration of any securities of the Company because of the filing of the
Registration Statement or the offering and sale of the Securities.
(s) No action has been taken and no statute, rule, regulation or
order has been enacted, adopted or issued by any governmental agency or body
that prevents the issuance of the Securities, suspends the effectiveness of the
Registration Statement, prevents or suspends the use of the Preliminary
Prospectus, or suspends the sale of the Securities in any jurisdiction referred
to in Section 4(f) below, provided, however, that to the extent this
representation relates to state securities or blue sky laws and laws of
jurisdictions other than the United States and its political subdivisions, it
shall be limited to the knowledge of the Company. No injunction, restraining
order or order of any nature by a federal or state court of competent
jurisdiction has been issued and served on the Company or any of its
Subsidiaries with respect to the Company or any of its Subsidiaries that would
prevent or suspend the issuance or sale of the Securities, the effectiveness of
the Registration Statement, or the use of the Preliminary Prospectus in any
jurisdiction referred to in Section 4(f) below.
(t) The Company has not taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities in any jurisdiction referred to in Section 4(f) below in
contravention of applicable law, provided that no representation is made herein
as to the activities of any Underwriter.
(u) The Company and its Subsidiaries maintain (x) systems of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; and (iii) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences and (y) disclosure controls and procedures as defined in Rule 15d-15
under the Exchange Act.
(v) The Company is, to its knowledge, in compliance in all material
respects with the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 that
are effective and the rules and regulations of the Commission that have been
adopted and are effective thereunder.
4. Agreements of the Company. The Company agrees with the several
Underwriters as follows:
(a) The Company will not, from the Execution Date until the end of
such period as the Final Prospectus is required by law to be delivered in
connection with sales of the Securities by an Underwriter or dealer, file any
amendment or supplement to the Registration Statement or the Final Prospectus,
unless a draft thereof shall first have been submitted to the Underwriters
within a reasonable period of time prior to the filing thereof and the
Underwriters shall not have objected thereto in good faith.
(b) The Company will notify the Underwriters promptly, and will
confirm such advice in writing, (i) when any post-effective amendment to the
Registration Statement becomes effective, (ii) of any request by the Commission
for amendments or supplements to the Registration Statement or the Final
Prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose or the threat
thereof, (iv) until the end of such period as the Final Prospectus is required
by law to be delivered in connection with sales of the Securities by an
Underwriter or dealer, of the happening of any event that in the judgment of the
Company requires the Company to file an amendment or supplement to the
Registration Statement and (v) of receipt by the Company, or any representatives
or attorney of the Company, of any other communication from the Commission
relating to the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus or the Final Prospectus or the offering of the Securities. If at any
time the Commission shall issue any order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to obtain
the withdrawal of such order at the earliest possible moment.
(c) If and to the extent not already furnished, the Company will
furnish to the Underwriters, without charge, one complete copy of the
Registration Statement and of any post-effective amendment thereto, including
financial statements and schedules, and all exhibits thereto (including any
documents filed under the Exchange Act and deemed to be incorporated by
reference into the Final Prospectus), and will upon request make available to
the Underwriters, without charge, additional copies of the Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules but without exhibits and documents incorporated by
reference therein.
(d) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time, the
Company will deliver to the Underwriters, without charge, as many copies of the
Final Prospectus or any supplement thereto, as the Underwriters may reasonably
request. The Company consents to the use of any Preliminary Prospectus and the
Final Prospectus or any amendment or supplement thereto by the Underwriters and
by all dealers to whom the Securities may be sold, both in connection with the
offering or sale of the Securities and for any period of time thereafter during
which a prospectus is required by law to be delivered in connection therewith.
If during such period of time, any event shall occur which in the judgment of
the Company or counsel to the Underwriters should be set forth in the Final
Prospectus in order to make any statement therein, in the light of the
circumstances under which it was made when delivered, not misleading, or if it
is necessary to supplement the Final Prospectus to comply with law, the Company
will forthwith prepare and duly file with the Commission an appropriate
supplement thereto or a document under the Exchange Act deemed to be
incorporated therein, and will deliver to the Underwriters, without charge, such
number of copies thereof as the Underwriters may reasonably request. The Company
shall not file any document under the Exchange Act before the termination of the
offering of the Securities by the Underwriters if such document would be deemed
to be incorporated by reference into any Preliminary Prospectus or the Final
Prospectus, unless a draft thereof shall first have been submitted to the
Underwriters within a reasonable period of time prior to the filing thereof and
the Underwriters shall not have objected thereto in good faith.
(f) Prior to any public offering of the Securities by the
Underwriters, the Company will cooperate with the Underwriters and counsel to
the Underwriters in connection with the registration or qualification of the
Securities for offer and sale under the securities or blue sky laws of such
United States jurisdictions and similar laws of such foreign jurisdictions as
the Underwriters may request, and will maintain such qualifications in effect so
long as required for the distribution of the Securities; provided, that in no
event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to general service of process or general taxation in any jurisdiction
where it is not now so subject.
(g) During the period of five years commencing on the Effective
Date, the Company will furnish to the Underwriters, if requested, copies of such
financial statements and other periodic and special reports as the Company may
from time to time distribute generally to the holders of any class of its
capital stock, and will furnish to the Underwriters, if requested, a copy of
each annual or other report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of its
securities as soon as may be practicable but in no event later than the last day
of the fifteenth full calendar month following the calendar quarter in which the
Execution Date falls, an earning statement (which need not be audited but shall
be in reasonable detail) for a period of 12 months ended commencing after the
Effective Date, within the meaning of and satisfying the provisions of Section
11(a) of the Act (including Rule 158 of the Rules and Regulations).
(i) Unless otherwise agreed by the parties hereto, whether or not
the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company will pay, or reimburse if paid by the
Underwriters, all costs and expenses incident to the performance of the
obligations of the Company under this Agreement, including but not limited to
costs and expenses of or relating to (i) the preparation, printing and filing of
the Registration Statement and exhibits thereto, the Basic Prospectus, any
Preliminary Prospectus, the Final Prospectus and any amendment or supplement to
the Registration Statement or the Final Prospectus, (ii) the preparation and
delivery of certificates representing the Securities, (iii) the printing of this
Agreement, any agreement among underwriters, any dealer agreements and any
underwriters' questionnaire, (iv) furnishing (including costs of shipping and
mailing) such copies of the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus and the Final Prospectus, and all amendments and
supplements thereto, as may be requested for use in connection with the offering
and sale of the Securities by the Underwriters or by dealers to whom Securities
may be sold, (v) any filings required to be made by the Underwriters with the
NASD, and the fees, disbursements and other charges of counsel for the
Underwriters in connection therewith, (vi) the registration or qualification of
the Securities for offer and sale under the securities or blue sky laws of such
United States jurisdictions and similar laws of such foreign jurisdictions
designated pursuant to Section 4(f) hereof, including the fees, disbursements
and other charges of counsel for the Underwriters in connection therewith, and
the preparation and printing of preliminary, supplemental and final blue sky
memoranda, (vii) counsel to the Company, (viii) the rating of the Securities by
one or more rating agencies and (ix) the Trustee and any agent of the Trustee
and the fees, disbursements and other charges of counsel for the Trustee in
connection with the Indenture and the Securities.
(j) Unless otherwise agreed by the parties, if this Agreement shall
be terminated for any reason by the Company pursuant to any of the provisions
hereof (other than pursuant to Section 7 hereof) or if for any reason the
Company shall be unable to perform its obligations hereunder, the Company will
reimburse the Underwriters for all out-of-pocket expenses (including the fees,
disbursements and other charges of counsel for the Underwriters) reasonably
incurred by them in connection herewith.
(k) The Company will not at any time, directly or indirectly, take
any action described in Section 3(t) hereof.
(l) Until thirty (30) days from the Execution Date, the Company
will not, without the consent of the Representatives, offer, sell or contract to
sell, or otherwise dispose of, by public offering, or announce the public
offering of, any other debt securities of the Company other than (i) the
Securities, (ii) in connection with the remarketing of up to $500,000,000
aggregate principal amount of the Company's Senior Notes, Series J, due 2007 and
(iii) the incurrence of indebtedness under the Company's credit facilities or
through commercial paper issuances.
5. Conditions of Obligations of the Underwriters. In addition to the
execution and delivery of the Price Determination Agreement, the obligations of
the Underwriters shall be subject to the condition that all representations and
warranties and other statements of the Company set forth herein are, at and as
of the Closing Date, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions, unless any such condition is waived in writing
by the Underwriters:
(a) (i) No stop order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for that purpose
shall be pending or threatened by the Commission, (ii) any request for
additional information on the part of the staff of the Commission or any such
authorities with respect to the offering of the Securities shall have been
complied with to the satisfaction of the staff of the Commission or such
authorities and (iii) after the Execution Date, no amendment or supplement to
the Registration Statement or the Final Prospectus shall have been filed unless
a copy thereof was first submitted to the Underwriters and the Underwriters did
not object thereto in good faith, and the Underwriters shall have received
certificates, dated the Closing Date and signed on behalf of the Company by the
Chief Executive Officer of the Company and the Chief Financial Officer of the
Company (who may, as to proceedings threatened, rely upon the best of their
information and belief), to the effect of clauses (i) and (ii).
(b) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus (i) there shall not have
been any change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Final
Prospectus, or (ii) neither the Company nor any of the Subsidiaries shall have
sustained any loss or interference with its business or properties from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or any court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Registration Statement and
the Final Prospectus, the effect of which any such case described in clause (i)
or (ii) is, in the judgment of the Representatives, so material and adverse as
to make it impracticable or inadvisable to proceed with the public offering or
the delivery of the Securities on the terms and in the manner contemplated in
the Final Prospectus.
(c) On or after the date of hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in trading in
securities generally on The New York Stock Exchange (the "NYSE"); (ii) a
suspension or material limitation in trading in the Company's securities by the
NYSE; (iii) a general moratorium on commercial banking activities declared by
Federal or New York State authorities or a material disruption in commercial
banking or securities settlement or clearance services in the United States;
(iv) any material adverse change in the financial markets in the United States
or elsewhere; or (v) the outbreak or escalation of hostilities or other
international or national calamity or crisis, if the effect of any such event
specified in clause (iv) or (v), in the Representatives' judgment, makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in the Final
Prospectus.
(d) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or preferred stock
by any "nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii)
no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
of the Company's debt securities.
(e) At the Closing Date, the Underwriters shall have received
satisfactory evidence to the effect that the ratings applicable to the
Securities are BBB+ or better by Standard & Poor's Ratings Services and Baa2 or
better by ▇▇▇▇▇'▇ Investors Service, Inc.
(f) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, there shall have been no
litigation or other proceeding instituted against the Company or any of the
Subsidiaries or any of their respective officers or directors in their
capacities as such, before or by any federal, state or local court, commission,
regulatory body, administrative agency or other governmental body, domestic or
foreign, in which litigation or proceeding an unfavorable ruling, decision or
finding would have a Material Adverse Affect.
(g) On the Closing Date, the Underwriters shall have received an
opinion, dated the Closing Date, and satisfactory in form and substance to
counsel for the Underwriters, from ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., Senior Vice President,
General Counsel and Secretary of the Company, and from Jones, Walker, Waechter,
Poitevent, Carrere & ▇▇▇▇▇▇▇, L.L.P, special counsel to the Company, to the
effect set forth in Exhibit B and Exhibit C hereto, respectively.
(h) On the Closing Date, the Underwriters shall have received an
opinion, dated the Closing Date, from Pillsbury Winthrop LLP, counsel for the
Underwriters, with respect to such matters as the Underwriters may reasonably
require. In giving such opinion, such counsel may rely, as to all matters
governed by the laws of the State of Louisiana, upon the opinion of Jones,
Walker, Waechter, Poitevent, Carrere & ▇▇▇▇▇▇▇, L.L.P. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
its subsidiaries, and certificates of public officials.
(i) On the date hereof and at the Closing Date, KPMG, who has
audited certain of the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement, shall have
furnished to the Underwriters a letter, dated the respective dates of delivery
thereof, in form and substance satisfactory to the Underwriters.
(j) At the Closing Date, there shall be furnished to the
Underwriters a certificate, dated the date of its delivery, signed on behalf of
the Company by each of the Chief Executive Officer and the Chief Financial
Officer of the Company, in form and substance satisfactory to the Underwriters,
to the effect that:
(i) Each signer of such certificate has carefully examined
the Registration Statement and the Final Prospectus and (A) the
Registration Statement is true and correct in all material respects and
does not omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not untrue or misleading,
and (B) the Final Prospectus is true and correct in all material respects
and does not 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 untrue or misleading (it being understood that to the extent a
statement in the Registration Statement or Final Prospectus, including any
documents deemed to be incorporated by reference therein, refers to and
speaks as of a specific date, each signer of such certificate only
represents with respect to such statement that it was true and correct in
all material respects as of such date) and (C) since the Execution Date, no
event has occurred as a result of which it is necessary to supplement the
Final Prospectus in order to make the statements therein, in light of the
circumstances under which they were made, not untrue or misleading in any
material respect and there has been no document required to be filed under
the Exchange Act and the Exchange Act Rules and Regulations that upon such
filing would be deemed to be incorporated by reference into the Final
Prospectus that has not been so filed.
(ii) Each of the representations and warranties of the
Company contained in this Agreement were, when originally made, and are, at
the time such certificate is delivered, true and correct.
(iii) Each of the covenants required herein to be performed by
the Company on or prior to the delivery of such certificate has been duly,
timely and fully performed and each condition herein required to be
complied with by the Company on or prior to the date of such certificate
has been duly, timely and fully complied with.
(k) The Company shall have furnished to the Underwriters such
certificates, in addition to those specifically mentioned herein, as the
Underwriters may have reasonably requested as to the accuracy and completeness
at the Closing Date of any statement in the Registration Statement or the Final
Prospectus or any documents filed under the Exchange Act and deemed to be
incorporated by reference into the Final Prospectus, as to the accuracy at the
Closing Date, of the representations and warranties of the Company herein, as to
the performance by the Company of its obligations hereunder, or as to the
fulfillment of the conditions concurrent and precedent to the obligations of the
Underwriters hereunder.
6. Indemnification. (a) The Company will indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement (or in any prior registration statement to which the
Final Prospectus, as a combined prospectus under Rule 429 of the Rules and
Regulations, may relate), the Basic Prospectus, the Final Prospectus and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are 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, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement, the Basic Prospectus, the Final Prospectus and any other
prospectus relating to the Securities, or any such amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter expressly for use in the Final Prospectus as amended
or supplemented relating to such Securities; and provided, further, that this
Section 6(a), as such section relates to any preliminary prospectus or
preliminary prospectus supplement, shall not apply on account of any such
losses, claims, damages, liabilities or expenses arising from, or based upon,
the offering of the Securities to any person if a copy of any final prospectus
or final prospectus supplement was timely made available by the Company to the
Underwriters and was not sent or given by or on behalf of the Underwriters to
such person, if required by law to have been so delivered, at or prior to the
written confirmation of the sale of such Securities to such person, and if such
final prospectus or final prospectus supplement would have cured the defect
giving rise to such losses, claims, damages, liabilities and expenses.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the Basic
Prospectus, the Final Prospectus and any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or are 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,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement, the Basic Prospectus, the
Final Prospectus and any other prospectus relating to the Securities, or any
such amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by such Underwriter expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation unless (i) the Company and such
indemnified party shall have mutually agreed to the employment of such counsel,
or (ii) the named parties to any such action (including any impleaded parties)
include both such indemnified party and the Company and such indemnified party
shall have been advised by such counsel that a conflict of interest between the
Company and such indemnified party may arise and for this reason it is not
desirable for the same counsel to represent both the indemnifying party and also
the indemnified party (it being understood, however, that the Company shall not,
in connection with any one such action or separate but substantially 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), in
which case the fees and expenses of such counsel shall be at the expense of the
Company. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include any statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Securities on the other from the offering of the Securities to which such
loss, claim, damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the Underwriters of the
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters.
The relative fault 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 on the one hand or such Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include 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 subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable 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 been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Securities in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to such Securities and
not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 6 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
7. Substitution of Underwriters. If any one or more of the Underwriters
shall fail or refuse to purchase any of the Securities which it or they have
agreed to purchase hereunder, and the aggregate principal amount of Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal amount of
Securities, the other Underwriters shall be obligated, severally, to purchase
the Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase, in the proportions which the principal amount of
Securities which they have respectively agreed to purchase pursuant to Section 1
hereof bears to the aggregate principal amount of Securities which all such
non-defaulting Underwriters have so agreed to purchase, or in such other
proportions as such non-defaulting Underwriters may specify; provided that in no
event shall the maximum principal amount of Securities which any Underwriter has
become obligated to purchase pursuant to Section 1 hereof be increased pursuant
to this Section 7 by more than one-ninth of the principal amount of Securities
agreed to be purchased by such Underwriter without the prior written consent of
such Underwriter. If any Underwriter or Underwriters shall fail or refuse to
purchase any Securities and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase exceeds one-tenth of the aggregate principal amount of the Securities
and arrangements satisfactory to any non-defaulting Underwriter and the Company
for the purchase of such Securities are not made within 48 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company for the purchase or sale of any
Securities under this Agreement. In any such case either the Underwriters or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Final Prospectus or in any other documents or
arrangements may be effected. Any action taken pursuant to this Section 7 shall
not relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
8. Miscellaneous. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and, unless otherwise specified, shall be mailed
or delivered (a) if to the Company, at the office of the Company, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Senior Vice
President, General Counsel and Secretary or (b) if to the Underwriters, to Banc
of America Securities LLC, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: High Grade Debt Capital Markets Transaction Management, to ▇.▇.
▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
High Grade Syndicate Desk - 8th Floor and to ▇▇▇▇▇▇ Brothers Inc., ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Debt Capital Markets,
Media/Telecommunications Group. Any such notice shall be effective only upon
receipt. Any notice under Section 7 may be made by telephone, but if so made
shall be subsequently confirmed in writing.
The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
This Agreement has been and is made solely for the benefit of the
several Underwriters and the Company and of the controlling persons, directors
and officers referred to in Section 6, and their respective successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" as used in this Agreement
shall not include a purchaser, as such purchaser, of Securities from any of the
several Underwriters.
THE RIGHTS AND DUTIES OF THE PARTIES TO THIS UNDERWRITING AGREEMENT
SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE GOVERNED
BY THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY CHOICE OF LAW
PRINCIPLES THAT MIGHT CALL FOR THE APPLICATION OF THE LAW OF ANY OTHER
JURISDICTION.
This Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
IN CASE ANY PROVISION IN THIS AGREEMENT SHALL BE INVALID, ILLEGAL OR
UNENFORCEABLE, THE VALIDITY, LEGALITY AND ENFORCEABILITY OF THE REMAINING
PROVISIONS SHALL NOT IN ANY WAY BE AFFECTED OR IMPAIRED THEREBY.
The Company and the Underwriters each hereby irrevocably waive any
right they may have to trial by jury in respect of any claim based upon or
arising out of this Agreement or the transactions contemplated hereby.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
CENTURYTEL, INC.
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
-------------------------------
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Title: Executive Vice President &
Chief Financial Officer
Confirmed as of the date first
above mentioned:
Banc of America Securities LLC
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ Brothers Inc.
Lazard Freres & Co. LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
SunTrust Capital Markets, Inc.
Wachovia Capital Markets, LLC
The ▇▇▇▇▇▇▇▇ Capital Group, L.P.
By: BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Principal
By: ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
By: ▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
SCHEDULE I
----------
CENTURYTEL, INC.
$350,000,000 5.00% Senior Notes, Series M, due 2015
Name of Underwriter Principal Amount of Securities
----------------------------------------- ------------------------------
Banc of America Securities LLC $98,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. 98,000,000
▇▇▇▇▇▇ Brothers Inc. 98,000,000
SunTrust Capital Markets, Inc. 10,500,000
Wachovia Capital Markets, LLC 10,500,000
Lazard Freres & Co. LLC 7,000,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated 7,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. 7,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. 7,000,000
The ▇▇▇▇▇▇▇▇ Capital Group, L.P. 7,000,000
TOTAL $350,000,000
============
-------------------------------------------------------------------------------
SCHEDULE II
-----------
SUBSIDIARIES
Name
--------
CenturyTel Arkansas Holdings, Inc.
CenturyTel of Central Wisconsin, LLC
CenturyTel of ▇▇▇▇▇▇▇▇▇▇, LLC
(successor to ▇▇▇▇▇▇▇▇▇▇ Telephone Company)
CenturyTel of Arkansas, Inc.
(formerly named Century Telephone of Arkansas, Inc.)
CenturyTel of Mountain Home, Inc.
(formerly named Mountain Home Telephone Co., Inc.)
CenturyTel of Wisconsin, LLC
(successor to Century Telephone of Wisconsin, Inc.)
CenturyTel Midwest-Michigan, Inc.
(formerly named Century Telephone Midwest, Inc.)
CenturyTel of Ohio, Inc.
(formerly named Century Telephone of Ohio, Inc.)
CenturyTel of Alabama, LLC
Spectra Communications Group, LLC
Telephone USA of Wisconsin, LLC
CenturyTel of Washington, Inc.
CenturyTel of Eagle, Inc.
CenturyTel of Midwest-▇▇▇▇▇▇▇, LLC
CenturyTel of Montana, Inc.
CenturyTel of Northwest Arkansas, LLC
CenturyTel of Central Arkansas, LLC
CenturyTel Holdings, Inc.
CenturyTel of the Midwest-Wisconsin, LLC
CenturyTel of the Northwest, Inc.
CenturyTel of Michigan, Inc.
CenturyTel of San Marcos, Inc.
CenturyTel Service Group, LLC
EXHIBIT A
CENTURYTEL, INC.
PRICE DETERMINATION AGREEMENT
-----------------------------
February 9, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ Brothers Inc.
Lazard Freres & Co. LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
SunTrust Capital Markets, Inc.
Wachovia Capital Markets, LLC
The ▇▇▇▇▇▇▇▇ Capital Group, L.P.
c/o Banc of America Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated February 9, 2005
(the "Underwriting Agreement"), among CenturyTel, Inc., a Louisiana corporation
(the "Company") and the several Underwriters named in Schedule I thereto (the
"Underwriters"). The Underwriting Agreement provides for sale to the
Underwriters, and the purchase by the Underwriters, severally and not jointly,
from the Company, subject to the terms and conditions set forth therein, of
$350,000,000 aggregate principal amount of the Company's 5.00% Senior Notes,
Series M, due 2015 (the "Securities") to be issued pursuant to an Indenture
dated as of March 31, 1994 between the Company and Regions Bank
(successor-in-interest to First American Bank & Trust of Louisiana and Regions
Bank of Louisiana), as trustee, as supplemented to the date hereof, and as will
be supplemented by the Third Supplemental Indenture dated as of February 14,
2005. This Agreement is the Price Determination Agreement referred to in the
Underwriting Agreement.
Pursuant to Section 1 of the Underwriting Agreement, the undersigned
agree with the several Underwriters that the purchase price for the Securities
to be paid by the several Underwriters shall be 98.335% of the aggregate
principal amount of the Securities set forth opposite the names of the
Underwriters in Schedule I attached thereto.
The Company represents and warrants to the several Underwriters that
the representations and warranties of the Company set forth in Section 3 of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
THE RIGHTS AND DUTIES OF THE PARTIES TO THIS UNDERWRITING AGREEMENT
SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE GOVERNED
BY THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY CHOICE OF LAW
PRINCIPLES THAT MIGHT CALL FOR THE APPLICATION OF THE LAW OF ANY OTHER
JURISDICTION.
This Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
If the foregoing is in accordance with your understanding of the
agreement among the several Underwriters and the Company, please sign and return
to the Company a counterpart hereof, whereupon this instrument along with all
counterparts and together with the Underwriting Agreement shall be a binding
agreement among the several Underwriters and the Company in accordance with its
terms and the terms of the Underwriting Agreement.
Very truly yours,
CENTURYTEL, INC.
By:
----------------------------
Name:
Title:
Confirmed as of the date
first above mentioned:
Banc of America Securities LLC
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ Brothers Inc.
Lazard Freres & Co. LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
SunTrust Capital Markets, Inc.
Wachovia Capital Markets, LLC
The ▇▇▇▇▇▇▇▇ Capital Group, L.P.
By: BANC OF AMERICA SECURITIES LLC
By:
---------------------------------------
Name:
Title:
By: ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By:
---------------------------------------
Name:
Title:
By: ▇▇▇▇▇▇ BROTHERS INC.
By:
---------------------------------------
Name:
Title:
EXHIBIT B
Form of Opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq,
General Counsel of CenturyTel, Inc.
-----------------------------------
1. The Company and each of the Subsidiaries is a corporation, limited
liability company or partnership duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization, is duly licensed or
qualified to do business and in good standing as a foreign corporation or
limited liability company in all jurisdictions in which the nature of the
activities conducted by it or the character of the assets owned or leased by it
makes such license or qualification necessary, except where the failure to be so
licensed or qualified would not have a material adverse effect on the Company
and its Subsidiaries, taken as a whole.
2. The Company and each of the Subsidiaries has full power and
authority to own or lease all the assets owned or leased by it and, to the best
of my knowledge, has all necessary and material authorizations, approvals,
orders, licenses, certificates, franchises, and permits of and from all
governmental regulatory officials and bodies to own its properties and to
lawfully conduct its business as described in the Registration Statement and the
Final Prospectus.
3. The Company or one of its wholly owned subsidiaries is the sole
record and beneficial owner of all of the issued common stock of each of the
Subsidiaries.
4. The execution, delivery and performance by the Company of the
Underwriting Agreement and the Indenture and the consummation by the Company of
the transactions contemplated hereby and thereby will not (i) result in a
violation of any of the terms or provisions of the articles of incorporation or
by-laws (or comparable instruments) of the Company or any of the Subsidiaries,
or (ii) violate or conflict with any franchise or any judgment, ruling, decree,
order, statute, rule or regulation of any court or other governmental agency or
body known to me and applicable to the business or properties of the Company or
any of the Subsidiaries or (iii) result in the creation or imposition of any
lien, charge or encumbrance upon any of the assets of the Company or any of the
Subsidiaries pursuant to the terms or provisions of, or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
or give any other party a right to terminate any of its obligations under, or
result in the acceleration of any obligation under, any indenture, mortgage,
deed of trust, voting trust agreement, loan agreement, bond, debenture, note
agreement or other evidence of indebtedness, lease, contract or other agreement
or instrument to which the Company or any of the Subsidiaries is a party or by
which the Company or any of the Subsidiaries or any of their respective
properties is or are bound or affected (the "applicable agreements"), other than
with respect to this clause (iii) any breaches, violations, defaults,
terminations or accelerations with respect to any applicable agreement that will
not, or are not likely to, have a Material Adverse Affect.
5. Except as set forth in the Registration Statement and the Final
Prospectus, to the best of my knowledge, there are no actions, suits or
proceedings pending or threatened against the Company or any of its Subsidiaries
or any of their respective officers, in their capacity as such, before or by any
federal or state court, commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, which in my opinion is likely to
materially and adversely affect the business, properties, business prospects,
condition (financial or otherwise) or results of operations of the Company and
its Subsidiaries, taken as a whole, as they exist on the date hereof.
I have participated in the preparation of the Registration Statement
and the Final Prospectus. Although I have not verified and am not opining upon
or assuming any responsibility for the accuracy or completeness of the
information contained in the Registration Statement and the Final Prospectus, on
the basis of my participation in the preparation of the Registration Statement
and the Final Prospectus and my discussions with certain officers and employees
of the Company, certain of its legal counsel, its independent registered public
accountants and your representatives and counsel, nothing has come to my
attention which would lead me to believe that, both as of the Effective Date and
as of the date of this opinion, the Registration Statement contained or contains
any untrue statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Final Prospectus or any supplement thereto including
any documents deemed to be incorporated by reference into the Final Prospectus,
at the time the Final Prospectus or any supplement thereto was first filed with
the Commission pursuant to Rule 424(b) and as of the date of this opinion,
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances in which they were made, not
misleading (except that I express no opinion with respect to financial
statements, schedules and other financial, statistical or accounting data
included in the Registration Statement or the Final Prospectus (or incorporated
by reference therein) or the Statement of Eligibility under the Trust Indenture
Act of the Trustee on Form T-1).
EXHIBIT C
Form of Opinion of
Jones, Walker, Waechter, Poitevent, Carrere & ▇▇▇▇▇▇▇, L.L.P
------------------------------------------------------------
1. The Company and each of the Subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization.
2. The Securities have been duly authorized, executed and delivered by
the Company. The Securities, when duly authenticated in accordance with the
terms of the Indenture and assuming due payment by the Underwriters in
accordance with the Underwriting Agreement, will entitle their holders to the
benefits provided by the Indenture and will constitute valid and binding
obligations of the Company enforceable against the Company in accordance with
their respective terms, except (i) that the enforcement thereof may be subject
to bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws, now or hereafter in effect, relating to creditors' rights
generally, (ii) the enforceability thereof is subject to general principles of
equity (regardless of whether such enforceability is considered in a proceeding
at law or in equity) and that the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may be brought
and (iii) certain provisions contained in the Indenture relating to remedies may
be limited by public policy, equitable principles or other provisions of
applicable laws, rules, regulations, court decisions or constitutional
requirements, but in our judgment the matters in this clause (iii) do not result
in the remedies that remain available being inadequate for the enforcement of
the Indenture and the Securities.
3. (i) On the Effective Date, the Registration Statement and, when the
Final Prospectus was filed with the Commission pursuant to Rule 424(b), the
Final Prospectus (and any supplement thereto), including each document
incorporated by reference therein, as of the time such documents were filed,
complied in all material respects as to form with the requirements of the Act,
the Rules and Regulations, the Exchange Act, the Exchange Act Rules and
Regulations, the Trust Indenture Act and the Trust Indenture Act Rules and
Regulations and (ii) on the Effective Date, the Indenture complied in all
material respects as to form with the Trust Indenture Act and the Trust
Indenture Act Rules and Regulations and the Indenture has been duly qualified
under the Trust Indenture Act (except that we express no opinion as to (a)
financial statements, schedules and other financial or statistical data
contained in the Registration Statement or the Final Prospectus (or incorporated
by reference therein) and (b) the Statements of Eligibility under the Trust
Indenture Act on Form T-1 (the "Form T-1s") or any other exhibits contained in,
made a part of or incorporated by reference in the Registration Statement (other
than the Indenture and the form of Security)).
4. The Registration Statement has become effective under the Act and,
to the best of our knowledge, no order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or is threatened or pending.
5. No consent, approval, authorization or order of, or filing,
registration, qualification or declaration with, any court or federal, state or
local governmental agency or body is required for (i) the execution, delivery
and performance by the Company of the Underwriting Agreement, the Securities or
the Indenture by the Company, (ii) the authorization, offer, issuance, sale or
delivery of the Securities by the Company or (iii) the consummation by the
Company of the transactions on its part contemplated by the Underwriting
Agreement and the Indenture, except such as may have been previously obtained
under the Act, the Rules and Regulations, the Exchange Act, the Exchange Act
Regulations, the Trust Indenture Act or the Trust Indenture Act Rules and
Regulations or the New York Stock Exchange Listed Company Manual and such as may
be required under foreign or state securities or blue sky laws and the rules and
regulations promulgated thereunder or the by-laws and rules of the National
Association of Securities Dealers, Inc. in connection with the purchase and
distribution of the Securities by the Underwriters.
6. The statements under the heading "Description of Debt Securities" in
the Registration Statement and the headings "Description of the Notes" and
"Material United States Federal Income Tax Consequences" in the Final Prospectus
are accurate in all material respects and, insofar as such description contains
statements constituting a summary of the legal matters or documents referred to
therein, such statements fairly summarize the information referred to therein..
7. The Company has full corporate power and authority to enter into the
Underwriting Agreement and the Indenture. The Underwriting Agreement has been
duly authorized, executed and delivered by the Company. The Indenture has been
duly authorized, executed and delivered by the Company and constitutes a valid
and binding agreement of the Company and is enforceable against the Company in
accordance with its terms, except (i) that the enforcement may be subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws, now or hereafter in effect, relating to creditors' rights
generally, (ii) that the enforceability of the Indenture is subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding at law or in equity) and that the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought and (iii) that certain provisions contained in the Indenture
relating to remedies may limited by public policy, equitable principles or other
provisions of applicable laws, rules, regulations, court decisions or
constitutional requirements, but in our judgment the matters in this clause
(iii) do not result in the remedies that remain available being inadequate for
the enforcement of the Indenture.
8. The issue and sale of the Securities by the Company, the execution,
delivery and performance by the Company of the Underwriting Agreement and the
Indenture and the consummation by the Company of the transactions contemplated
hereby and thereby will not (i) result in a violation of any of the terms or
provisions of the articles of incorporation or by-laws (or comparable
instruments) of the Company or any of the Subsidiaries, or (ii) to the best of
our knowledge, violate or conflict with any franchise or any judgment, ruling,
decree, order, statute, rule or regulation of any court or other governmental
agency or body known to us and applicable to the business or properties of the
Company or any of the Subsidiaries, except where such violation or conflict
would not have a Material Adverse Affect.
9. Except as set forth in the Registration Statement and the Final
Prospectus, to the best of our knowledge, there are no actions, suits or
proceedings pending or threatened against the Company or any of the Subsidiaries
or any of their respective officers in their capacity as such, before or by any
federal or state court, commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, which in our opinion is likely to
materially and adversely affect the financial condition or results of operations
of the Company and the subsidiaries, taken as a whole, as they exist on the date
hereof.
10. The Company is not, and after giving effect to the issuance and
sale of the Securities and the application of the proceeds thereof, will not be,
an "investment company" or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are defined
in the Investment Company Act of 1940, as amended.
Other than with respect to the opinion expressed in paragraph 6 above,
we have not ourselves verified the accuracy, completeness or fairness of the
information included in the Registration Statement and the Final Prospectus. We
have generally reviewed and discussed such information with certain officers and
employees of the Company, certain of its legal counsel and its independent
registered public accountants and with the Underwriters and their counsel. On
the basis of such review and discussion (relying as to materiality upon the
statements of the officers and other representatives of the Company, although
nothing has come to our attention that would lead us to believe that it is
unreasonable for us or you to so rely thereon), but without assuming any
responsibility for, or independently verifying, any information other than as
stated above, nothing has come to our attention that would lead us to believe
that, both as of the Effective Date and as of the date of this opinion, the
Registration Statement contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the Final
Prospectus or any supplement thereto, at the time the Final Prospectus or any
supplement thereto was first filed with the Commission pursuant to Rule 424(b)
and as of the date of this opinion, contained or contains any untrue statement
of a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances in which
they were made, not misleading (except that we express no belief with respect to
(i) financial statements and notes thereto, related schedules and any other
financial data included in the Registration Statement and the Final Prospectus,
(ii) the Form T-1s and all other exhibits contained in, made a part of or
incorporated by reference in the Registration Statement (other than the
Indenture (and forms of securities relating thereto)) or (iii) statements or
omissions based upon written information furnished to the Company by the
Underwriters expressly for use therein).
As special counsel to the Company we do not as a matter of course
review or pass on all agreements or proceedings to which the Company or its
subsidiaries have become parties nor have we done so in connection with this
opinion. Accordingly, whenever any statement in this letter is qualified by the
phrase "to the best of our knowledge" or "known to us" or a phrase of similar
import, such phrase is intended to mean the actual knowledge of information by
the lawyers in our firm who have been principally involved in negotiating the
subject transaction and preparing the pertinent documents and any other lawyers
in our firm having substantial responsibility for managing the client
relationship with the Company or overseeing the firm's provision of securities
law advice to the Company, but does not include the information that might be
revealed if there were to be undertaken a canvass of all lawyers in our firm, a
general search of our files, a review of all of the Company's contacts or any
other type of independent investigation.
In rendering the foregoing opinion, counsel may rely, to the extent
they deem such reliance proper, on the opinions (in form and substance
reasonably satisfactory to Underwriters' counsel) of other counsel reasonably
acceptable to Underwriters' counsel as to matters governed by the laws of
jurisdictions other than the United States and the State of Louisiana, and as to
matters of fact, upon certificates of officers of the Company and of government
officials; provided that such counsel shall state that the opinion of any other
counsel is in form satisfactory to such counsel and, in such counsel's opinion,
such counsel and you are justified in relying on such opinions of other counsel.
Copies of all such opinions and certificates shall be addressed to the
Underwriters (or shall state that the Underwriters may rely thereon) and shall
be furnished to Underwriters' counsel on the Closing Date.