EXECUTION COPY
, dated as of October 19, 2000 (the ""), between CenturyTel, Inc., a Louisiana corporation (the "Company")
and Banc of America Securities LLC (the "Remarketing Dealer").
WHEREAS, the Company has issued $400,000,000 aggregate principal amount
of its 7.750% Remarketable Senior Notes, Series I, due 2012 (the "Remarketable
Notes") pursuant to an Indenture, dated as of March 31, 1994 (the "Indenture"),
between the Company and Regions Bank (successor to Regions Bank of Louisiana and
First American Bank & Trust of Louisiana), as trustee (the "Trustee"); and
WHEREAS, the Remarketable Notes are being sold initially pursuant to an
underwriting agreement, dated October 12, 2000 (the "Underwriting Agreement"),
between the Company and Banc of America Securities LLC and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc. (collectively, the "Underwriters"); and
WHEREAS, the Remarketable Notes will be offered and sold to the
Underwriters as registered securities under the Securities Act of 1933, as
amended (the "1933 Act"); and
WHEREAS, the Company filed a registration statement on Form S-3 (the
"Registration Statement") relating to $2,000,000,000 of senior debt securities,
preferred stock, common stock and warrants, including the Remarketable Notes, at
the time the Registration Statement became effective, of which the prospectus
dated May 15, 2000 (the "Prospectus") was a part; and
WHEREAS, the Company has prepared a preliminary prospectus supplement
dated October 5, 2000 (the "Preliminary Prospectus Supplement") and a final
prospectus supplement dated October 12, 2000 (the "Prospectus Supplement")
relating to the offer and sale of the Remarketable Notes (the "Offering") (as
used herein, the term "Offering Document" shall be deemed to include the
Prospectus Supplement, the Prospectus and all documents incorporated therein by
reference, as from time to time amended or supplemented pursuant to the 1933 Act
or the Securities Exchange Act of 1934, as amended (the "1934 Act"), except that
if any new or revised prospectus or prospectus supplement shall be provided to
the Remarketing Dealer by the Company for use in connection with the remarketing
of the Remarketable Notes which differs from the Prospectus or the Prospectus
Supplement, the term "Offering Document" shall refer to such new or revised
prospectus or prospectus supplement, as the case may be, from and after the time
it is first provided to the Remarketing Dealer for such use); and
WHEREAS, Banc of America Securities LLC is prepared to act as the
Remarketing Dealer with respect to the remarketing of the Remarketable Notes on
any Remarketing Date (as defined herein) pursuant to the terms of, but subject
to the conditions set forth in, this Agreement;
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions set forth herein, the parties hereto agree as
follows:
Section 1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Indenture (including
in the form of each of the Remarketable Notes issued thereunder).
Section 2. Representations and Warranties. (a) The Company represents
and warrants to the Remarketing Dealer as of the date hereof, any Notification
Date (as defined below), any Determination Date (as defined below), any
Remarketing Date and until the 60th day after each such dates (each of the
foregoing dates being hereinafter referred to as a "Representation Date"), that
(i) it has made all the filings with the Securities and Exchange Commission, if
any (the "Commission"), that it is required to make under the 1934 Act and the
rules and regulations thereunder (the "1934 Act Regulations") (collectively, the
"1934 Act Documents"), (ii) each 1934 Act Document complies in all material
respects with the requirements of the 1934 Act and 1934 Act Regulations, and
each 1934 Act Document did not at the time of filing with the Commission, and
(as to 1934 Act Documents, or portions thereof, incorporated by reference in the
Offering Document) as of each Representation Date, will not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, (iii) the
applicable Offering Document will not, as of the Remarketing Date and each date
thereafter, if any, that the Remarketing Dealer provides such Offering Document
in connection with the delivery of the Remarketable Notes, include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and (iv)
no consent, approval, authorization, order or decree of any court or
governmental agency or body, excluding possible filings or registrations with
the Commission or state securities regulators, is required for the consummation
by the Company of the transactions contemplated by this Agreement or in
connection with the remarketing of the Remarketable Notes pursuant hereto,
except such as have been or shall have been obtained or rendered, as the case
may be.
(b) The Company further represents and warrants to the
Remarketing Dealer as of each Representation Date as follows:
(i) Each of the accountants who certified the financial
statements and supporting schedules included or incorporated by
reference in the Offering Document is an independent public accountant
with respect to the applicable company whose financial statements are
presented therein as required by the 1933 Act and the rules and
regulations under the 1933 Act (the "1933 Act Regulations").
(ii) The financial statements included or incorporated by
reference in the Offering Document, together with the related schedules
and notes, present fairly the financial condition and results of
operations of the Company and its consolidated subsidiaries, at the
dates and for the periods indicated, and such financial statements have
been prepared in conformity with generally accepted accounting
principles ("GAAP"). The supporting schedules included or incorporated
by reference in the Offering Document present fairly in accordance with
GAAP the information required to be stated therein. Any pro forma
financial statements and the related notes thereto included or
incorporated by reference in the Offering Document present fairly the
information shown therein, have been prepared on a basis consistent
with the historical financial statements included or incorporated by
reference in the Offering Document (except for the pro forma
adjustments specified therein), includes all material adjustments to
the historical financial information required by Rule 11-02 of
Regulation S-X under the 1933 Act and the 1934 Act to reflect the
transactions described in the notes to such financial information and
gives effect to assumptions made on a reasonable basis.
(iii) Since the respective dates as of which information
is given in the Offering Document, except as otherwise stated therein,
there has been no material adverse change in the consolidated financial
condition, stockholders' equity, results of operations, earnings or
business prospects of the Company and its subsidiaries taken as a whole
(a "Material Adverse Effect").
(iv) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, and the Company is duly qualified to do business and in
good standing as a foreign corporation in each jurisdiction in which
its ownership of property or conduct of its business requires such
qualification, except where the failure to so qualify would not have a
Material Adverse Effect, and has the corporate power and authority
necessary to own or hold its properties, to conduct its business and to
enter into and perform its obligations under this Agreement.
(v) Each significant subsidiary of the Company (as such
term is defined in Rule 1-02 of Regulation S-X), if any (each a
"Subsidiary" and, collectively, the "Subsidiaries"), has been duly
organized, is validly existing and in good standing under the laws of
the jurisdiction of its organization, is duly qualified to do business
and in good standing as a foreign entity in each jurisdiction in which
its ownership of property or conduct of its business requires such
qualification, except where the failure to so qualify would not have a
Material Adverse Effect, and has the power and authority necessary to
own or hold its properties, to conduct its business in which it is
engaged; except as otherwise disclosed in the Offering Document, all of
the issued and outstanding capital stock of each such Subsidiary has
been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; and none of the outstanding
shares of capital stock of any Subsidiary was issued in violation of
the preemptive or similar rights of any security holder of such
Subsidiary.
(vi) This Agreement has been duly authorized, executed
and delivered by the Company.
(vii) The Indenture has been duly authorized, executed and
delivered by the Company, and (assuming due authorization,execution and
delivery thereof by the Trustee) constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its terms
(subject as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of
whether considered in a proceeding in equity or at law).
(viii) The Remarketable Notes have been validly authorized
and executed by the Company and authenticated, issued and delivered in
the manner provided for in the Indenture and constitute legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms (subject as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally from time to time in effect
and to general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing,
regardless of whether considered in a proceeding in equity or at law),
and are in the form contemplated by the resolutions authorizing such
securities, and will be entitled to the benefits of the Indenture.
(ix) Neither the Company nor any of its Subsidiaries (if
any) is in violation of (A) its corporate charter or by-laws, or (B)
other organizational documents, or in default under any agreement,
indenture or instrument, except for such violations or defaults that
would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, the Indenture and the
Remarketable Notes and the consummation of the transactions
contemplated herein and in the Offering Document (including the
issuance and sale of the Remarketable Notes and the use of the proceeds
from the issuance thereof as described in the Prospectus Supplement
under the caption "Use of Proceeds") have been duly authorized by all
necessary corporate action and do not and will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any such Subsidiary pursuant to, any material
agreement, instrument (other than the Indenture) to which the Company
or any such Subsidiary is a party or by which it is bound or to which
any of its property or assets is subject, nor will such action result
in a material violation of the charter or by-laws of the Company or
other organizational documents or any such Subsidiary or any order,
rule or regulation of any court or governmental agency having
jurisdiction over the Company or any such Subsidiary or its property.
(x) There is no material action, suit or proceeding before
any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened against or
affecting the Company or any subsidiary (A) which is required to be
disclosed in the Offering Document (other than as disclosed therein),
or (B) which might reasonably be expected to materially and adversely
affect consummation of the transactions contemplated in this Agreement
or the performance by the Company of its obligations hereunder.
(xi) The Company is not an "investment company" or an
entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended.
(xii) The Remarketable Notes are rated at least BBB+ by
Standard & Poor's Ratings Service, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies ("S&P"), and Baa2 by ▇▇▇▇▇'▇ Investors Service ("Moody's")
or, in each case, such other rating as to which the Company shall have
most recently notified the Remarketing Dealer pursuant to Section 3(a)
hereof.
(c) Any certificate signed by any director or officer of the
Company and delivered to the Remarketing Dealer or to counsel for the
Remarketing Dealer in connection with the remarketing of the Remarketable Notes
shall be deemed a representation and warranty by the Company to the Remarketing
Dealer as to the matters covered thereby.
(d) Each party represents and warrants to the other party
that:
(i) Non-Reliance. It is acting for its own account, and it
has made its own independent decisions to enter into this Agreement and
as to whether this Agreement is appropriate or proper for it based upon
its own judgement and upon advice from such advisers as it has deemed
necessary. It is not relying on any communication (written or oral) of
the other party as investment advice or as a recommendation to enter
into this Agreement; it being understood that information and
explanations related to the terms and conditions of this Agreement
shall not be considered investment advice or a recommendation to enter
into this Agreement. No communication (written or oral) received from
the other party shall be deemed to be an assurance or guarantee as to
expected results of this Agreement.
(ii) Assessment and Understanding. It is capable of
assessing the merits of and understanding (on its own behalf or through
independent professional advice),and understands and accepts,the terms,
conditions and risks of this Agreement. It is also capable of assuming,
and assumes, the risks of this Agreement.
(iii) Status of Parties. The other party is not acting
as a fiduciary for or an adviser to it in respect of this Agreement.
Section 3. Covenants of the Company. The Company covenants with the
Remarketing Dealer as follows:
(a) The Company will provide prompt notice by telephone,
confirmed in writing (which may include facsimile or other electronic
transmission), to the Remarketing Dealer of (i) any notification or announcement
by a "nationally recognized statistical rating agency" (as defined by the
Commission for purposes of Rule 436(g)(2) under the ▇▇▇▇ ▇▇▇) with regard to the
ratings of any securities of the Company, including, without limitation,
notification or announcement of a downgrade in or withdrawal of the rating of
any security of the Company or notification or announcement of a downgrade in or
withdrawal of the rating of any security of the Company under surveillance or
review, including placement on what is currently called a "watch list" or a
"credit watch" with negative implications, or (ii) the occurrence at any time of
any event set forth in Section 9(c) of this Agreement.
(b) The Company will furnish to the Remarketing Dealer:
(i) not later than sixty (60) days prior to the first
Remarketing Date,the Offering Document relating to the Remarketable
Notes (including in each case any amendment or supplement thereto and
each document incorporated therein by reference as soon as practicable
when they become available);
(ii) upon the request of the Remarketing Dealer, each
1934 Act Document filed after the date hereof; and
(iii) in connection with the remarketing of the
Remarketable Notes, such other information as the Remarketing Dealer
may reasonably request from time to time and provide to potential
investors in connection with the remarketing.
The Company agrees to provide the Remarketing Dealer with as many copies of the
foregoing written materials and other Company-approved information as the
Remarketing Dealer may reasonably request for use in connection with the
remarketing of the Remarketable Notes and consents to the use thereof solely for
such purpose in compliance with applicable law and all applicable
confidentiality covenants.
(c) If, at any time from the Notification Date through the Final
Remarketing Date, any event or condition known to the Company relating to or
affecting the Company, any subsidiary thereof or the Remarketable Notes shall
occur which would reasonably be expected to cause the Offering Document to
contain an untrue statement of a material fact or omit to state a material fact,
the Company shall promptly notify the Remarketing Dealer in writing of the
circumstances and details of such event or condition.
(d) Prior to the Fixed Rate Remarketing Date, the Company will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(e) The Company will comply with the 1933 Act and the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and the
rules and regulations of the Commission thereunder so as to permit the
completion of the remarketing of the Remarketable Notes as contemplated in this
Agreement and in each Offering Document. If, at any time when an Offering
Document is required by the 1933 Act to be delivered in connection with sales of
the Remarketable Notes, any event shall occur or condition shall exist as a
result of which it is necessary, in the reasonable opinion of counsel for the
Remarketing Dealer or for the Company, to amend an Offering Document in order
that such Offering Document will not include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend an Offering Document or file a new
registration statement or amend or supplement any Offering Document or issue a
new prospectus in order to comply with the requirements of the 1933 Act or the
1933 Act Regulations and the Commission's interpretations of the 1933 Act and
the 1933 Act Regulations, the Company, at its expense, will promptly (i) prepare
and file with the Commission such amendment or supplement as may be necessary to
correct such statement or omission or to make the Offering Document comply with
such requirements, or prepare and file any such new registration statement and
prospectus as may be necessary for such purpose, (ii) furnish to the Remarketing
Dealer such number of copies of such amendment, supplement or other document as
the Remarketing Dealer may reasonably request and (iii) furnish to the
Remarketing Dealer an officers' certificate, an opinion, including a customary
statement as to the absence of material misstatements in or omissions from the
Offering Document, as amended or supplemented, of counsel for the Company
reasonably satisfactory to the Remarketing Dealer and a "comfort letter" from
the Company's independent accountants, in each case in form and substance
reasonably satisfactory to the Remarketing Dealer, of the same tenor as the
officers' certificate, opinion and comfort letter, respectively, delivered
pursuant to the Underwriting Agreement, but modified to relate to the Offering
Document as amended or supplemented to the date thereof or such new registration
statement and prospectus.
(f) The Company agrees that neither it nor any of its
subsidiaries or affiliates whose ownership would cause the Remarketable Notes to
be deemed to be no longer outstanding shall purchase or otherwise acquire, or
enter into any agreement to purchase or otherwise acquire, any of the
Remarketable Notes prior to the remarketing thereof by the Remarketing Dealer,
other than pursuant to Section 4(h) or 4(i) of this Agreement.
(g) The Company will comply with each of the covenants set forth
in the Underwriting Agreement through the final Remarketing Date.
Section 4. Appointment and Obligations of the Remarketing Dealer.
(a) Unless this Agreement is otherwise terminated in
accordance with Section 12 hereof, in accordance with the terms, but subject to
the following conditions, of this Agreement, the Company hereby appoints Banc of
America Securities LLC, and Banc of America Securities LLC hereby accepts such
appointment, as the exclusive Remarketing Dealer with respect to $400,000,000
aggregate principal amount of Remarketable Notes, subject to the possible
repurchase of Remarketable Notes in accordance with clause (h) of this Section 4
or possible redemption of Remarketable Notes in accordance with clause (i) of
this Section 4.
(b) It is expressly understood and agreed by the parties hereto
that the obligations of the Remarketing Dealer hereunder with respect to the
Remarketable Notes to be remarketed on a Remarketing Date are conditioned on (i)
the issuance and delivery of such Remarketable Notes by the Company pursuant to
the terms and conditions of the Underwriting Agreement and (ii) the Remarketing
Dealer's election on the Notification Date (as defined below) to purchase such
Remarketable Notes for remarketing. It is further expressly understood and
agreed by and between the parties hereto that, if the Remarketing Dealer has
elected to remarket the Remarketable Notes pursuant to clause (c) below, the
Remarketing Dealer shall not be obligated to set the Interest Rate to Maturity
(as defined below), or the Floating Period Interest Rate (as defined below) on
any of the Remarketable Notes, to remarket any of the Remarketable Notes or to
perform any of the other duties set forth herein at any time after the
Notification Date for such Remarketable Notes in the event that (i) any of the
conditions set forth in clause (a) or (b) of Section 9 hereof shall not have
been fully and completely met to the satisfaction of the Remarketing Dealer, or
(ii) any of the events set forth in clause (c) of Section 9 hereof shall have
occurred.
(c) On a Business Day not earlier than 20 Business Days prior to
the first Remarketing Date and not later than 4:00 p.m., New York City time, on
the 15th Business Day prior to the first Remarketing Date, the Remarketing
Dealer will notify the Company and the Trustee as to whether it elects to
purchase the Remarketable Notes on such Remarketing Date (the "Notification
Date"). If, and only if, the Remarketing Dealer so elects, such Remarketable
Notes shall be subject to mandatory tender to the Remarketing Dealer for
purchase and remarketing on such Remarketing Date, and the Remarketing Dealer
shall purchase the Remarketable Notes on such Remarketing Date, upon the terms
and subject to the conditions described herein. The Remarketable Notes will be
remarketed at a fixed rate of interest, unless, on any date subsequent to the
Remarketing Dealer's election to purchase the Remarketable Notes but prior to
the fourth Business Day prior to the first Remarketing Date (the "Floating
Period Notification Date") the Company has elected to exercise its Floating
Period Option, in which case the Remarketable Notes will be remarketed at a
floating rate for a period of one year, or until such a date (the "Floating
Period Termination Date") which is the Reference Rate Reset Date following the
date on which the Company elects to terminate such floating rate period (the
"Floating Rate Period Termination Notification Date"), whichever is sooner, at
which time the Remarketable Notes will be remarketed at a fixed rate of interest
unless the Company has chosen to redeem, or is required to redeem, the
Remarketable Notes. The purchase price of such tendered Remarketable Notes shall
be equal to 100% of the aggregate principal amount thereof on the first
Remarketing Date or the Dollar Price on the subsequent Remarketing Date.
(d) Subject to the Remarketing Dealer's election to remarket
the Remarketable Notes as provided in clause (c) above, by 3:30 p.m., New York
City time, on the third Business Day immediately preceding any Remarketing Date
(the "Floating Rate Spread Determination Date" or the "Fixed Rate Determination
Date" depending on the following election) the Remarketing Dealer shall
determine the Floating Rate Spread in the case that the Company has elected the
Floating Period Option or otherwise the Interest Rate to Maturity to the nearest
one hundredth of one percent per annum (0.01%) unless the Company has chosen to
redeem, or is required to redeem, the Remarketable Notes. Each Floating Period
Interest Rate will equal the sum of a Reference Rate (as defined below) and the
Floating Rate Spread (as defined below). The Interest Rate to Maturity shall be
equal to the sum of 5.72% (the "Base Rate") and the Applicable Spread (as
defined below), which will be based on the Dollar Price (as defined below) of
the Remarketable Notes.
"Applicable Spread" shall be the lowest Fixed Rate Bid (as
defined below), expressed as a spread (in the form of a percentage or
in basis points) above the Base Rate for the Remarketable Notes,
obtained by the Remarketing Dealer at 3:30 p.m., New York City time, on
the Fixed Rate Determination Date from the Fixed Rate Bids quoted to
the Remarketing Dealer by the Reference Corporate Dealers (as defined
below). A "Fixed Rate Bid" will be an irrevocable offer to purchase the
total aggregate outstanding principal amount of the Remarketable Notes
at the Dollar Price (as defined below), but assuming (i) a settlement
date that is the Fixed Rate Remarketing Date applicable to such
Remarketable Notes, without accrued interest, (ii) a maturity date that
is the tenth anniversary of the Fixed Rate Remarketing Date and (iii) a
stated annual interest rate equal to the relevant Base Rate plus the
spread bid by the applicable Reference Corporate Dealer (as defined
below). If fewer than five Reference Corporate Dealers submit Fixed
Rate Bids as described above, then the Applicable Spread shall be the
lowest such Fixed Rate Bid obtained as described above. The Interest
Rate to Maturity for the Remarketable Notes announced by the
Remarketing Dealer, absent manifest error, shall be binding and
conclusive upon the holders of beneficial interests in the Remarketable
Notes (the "Beneficial Owners"), the Company and the Trustee.
"Comparable Treasury Issue" for the Remarketable Notes means
the U.S. Treasury security or securities selected by the Remarketing
Dealer, as of the first Determination Date, as being the then current
on-the-run ten-year U.S. Treasury security (meaning the then most
recently issued ten-year U.S. Treasury security), unless, in the
reasonable judgment of the Remarketing Dealer, the then on-the-run
ten-year U.S. Treasury Security is not then being used as the "pricing
bond" for comparable corporate issues, in which case, the Comparable
Treasury Issue will mean the "pricing bond" used at the time for
comparable corporate issues or, if, in the reasonable judgment of the
Remarketing Dealer, there is no such "pricing bond", then the
Comparable Treasury Issue will mean the U.S. Treasury security or
securities selected by the Remarketing Dealer as of the first
Determination Date as having an actual maturity comparable to the
remaining term of the Remarketable Notes.
"Comparable Treasury Price" means, with respect to the first
Remarketing Date, (i) the offer prices for the Comparable Treasury
Issues (expressed in each case as a percentage of its principal amount)
at 12:00 noon, New York City time, on the first Determination Date, as
set forth on "Telerate Page 500" (as defined below) (or such other page
as may replace "Telerate Page 500"), or (ii) if such page (or any
successor page) is not displayed or does not contain such offer prices
on such Determination Date, (A) the average of the Reference Treasury
Dealer Quotations (as defined below) for such Remarketing Date, after
excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (B) if the Remarketing Dealer obtains fewer than five
such Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations. "Telerate Page 500" means the
display designated as "Telerate Page 500" on Dow ▇▇▇▇▇ Markets (or such
other page as may replace Telerate Page 500 on such service) or such
other service displaying the offer prices specified in clause (i) above
as may replace Dow ▇▇▇▇▇ Markets. "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer (as
defined below), the offer prices for the Comparable Treasury Issues
(expressed in each case as a percentage of its principal amount) quoted
in writing to the Remarketing Dealer by such Reference Treasury Dealer
by 3:30 p.m., New York City time, on the first Determination Date.
"Dollar Price" means, with respect to the Remarketable Notes
(1) the principal amount of such Remarketable Notes, plus (2) the
premium equal to the excess, if any, of (A) the present value, as of
the first Remarketing Date, of the Remaining Scheduled Payments (as
defined below) for such Remarketable Notes, discounted to such first
Remarketing Date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate, over (B) the
principal amount of such Remarketable Notes.
"Fixed Rate Determination Date" means the third Business Day
prior to the Fixed Rate Remarketing Date.
"Fixed Rate Remarketing Date" means the first Remarketing
Date, assuming the Remarketing Dealer has elected to purchase the
Remarketable Notes and the Company has not elected to exercise its
Floating Period Option, or the subsequent Remarketing Date on which the
Remarketing Dealer is obligated to remarket the Remarketable Notes in
the event that the Company has elected to exercise its Floating Period
Option.
"Floating Period Interest Rate" means the sum of the Reference
Rate and the Floating Rate Spread.
"Floating Period Option" means the Company's right, on any
date subsequent to the Remarketing Dealer's election to purchase the
Remarketable Notes, but prior to the fourth Business Day immediately
preceding the first Remarketing Date, to require the Remarketing Dealer
to remarket the Remarketable Notes at the Floating Period Interest
Rate.
"Floating Rate Period" with respect to the Remarketable Notes
means the period from (and including) the Floating Rate Remarketing
Date to (but excluding) the Floating Period Termination Date.
"Floating Rate Remarketing Date(s)" means October 15, 2002 in
the event that the Company has elected to exercise its Floating Period
Option.
"Floating Rate Reset Period" means the period from (and
including) the first Reference Rate Reset Date to (but excluding) the
next following Reference Rate Reset Date and thereafter the period from
(and including) a Reference Rate Reset Date to (but excluding) the next
following Reference Rate Reset Date; provided that the final Floating
Rate Reset Period during the Floating Rate Period shall run to (but
exclude) the Floating Period Termination Date.
"Floating Rate Spread" shall be the lowest Floating Rate Bid
expressed as a spread (in the form of a percentage or in basis points)
above the Reference Rate for the Remarketable Notes obtained by the
Remarketing Dealer at 3:30 p.m., New York City time, on the third
Business Day prior to the Floating Rate Remarketing Date, from the
Floating Rate Bids quoted to the Remarketing Dealer by the Reference
Money Market Dealers (as defined below). A "Floating Rate Bid" will be
an irrevocable offer to purchase the total aggregate outstanding
principal amount of the Remarketable Notes at the Dollar Price, but
assuming (i) a settlement date that is the Floating Rate Remarketing
Date, applicable to such Remarketable Notes, without accrued interest,
(ii) a maturity date equal to the Floating Period Termination Date,
(iii) a stated annual interest rate equal to the Reference Rate plus
the Floating Rate Spread, (iv) that the Remarketable Notes are callable
by the Remarketing Dealer, at the Dollar Price, on the Floating Period
Termination Date and (v) that the Remarketable Notes will be
repurchased by the Company at the Dollar Price on the Floating Period
Termination Date if not previously repurchased by the Remarketing
Dealer. If fewer than five Reference Money Market Dealers submit
Floating Rate Bids as described above, then the Floating Rate Spread
shall be the lowest such Floating Rate Bid obtained as described above.
The Floating Period Interest Rate for the Remarketable Notes announced
by the Remarketing Dealer, absent manifest error, shall be binding and
conclusive upon the holders of beneficial interests in such
Remarketable Notes (the "Beneficial Owners"), the Company and the
Trustee.
"Floating Rate Spread Determination Date" means the third
Business Day prior to the Floating Rate Remarketing Date.
"Interest Rate to Maturity" means the sum of the Base Rate and
the Applicable Spread.
"Reference Corporate Dealer" means each of up to five leading
dealers of publicly traded debt securities, including debt securities
of the Company, which shall be selected by the Company. The Company
shall advise the Remarketing Dealer of its selection of Reference
Corporate Dealers no later than five Business Days prior to the Fixed
Rate Remarketing Date. One of such Reference Corporate Dealers selected
by the Company shall be Banc of America Securities LLC if it is then
the Remarketing Dealer.
"Reference Money Market Dealer" means each of up to five
leading dealers of publicly traded debt securities, including debt
securities of the Company, which shall be selected by the Company, who
are also dealers in money market instruments. The Company shall advise
the Remarketing Dealer of its selection of Reference Money Market
Dealers no later than five Business Days prior to the Floating Rate
Remarketing Date. One of such Reference Money Market Dealers selected
by the Company shall be Banc of America Securities LLC if it is then
the Remarketing Dealer.
"Reference Rate" means the rate for each Floating Rate Reset
Period which shall be the rate for deposits in U.S. Dollars for a
period of one month which appears on the Telerate Page 3750 (or any
successor page) as of 11:00 a.m., London time, on the applicable
Reference Rate Determination Date. If no rate appears on Telerate Page
3750 on the Reference Rate Determination Date, the Remarketing Dealer
will request the principal London offices of four major reference banks
in the London Inter-Bank Market, to provide it with its offered
quotations for deposits in U.S. Dollars for the period of one month,
commencing on the first day of the Floating Rate Reset Period, to prime
banks in the London Inter-Bank Market at approximately 11:00 a.m.,
London time, on that Reference Rate Determination Date and in a
principal amount that is representative for a single transaction in
U.S. Dollars in that market at that time. If at least two quotations
are provided, then the Reference Rate will be the average of those
quotations. If fewer than two quotations are provided, then the
Reference Rate will be the average (rounded, if necessary, to the
nearest one hundredth of a percent (0.01%)) of the rates quoted at
approximately 11:00 a.m., New York City time, on the Reference Rate
Determination Date by three major banks in New York City selected by
the Remarketing Dealer for loans in U.S. Dollars to leading European
banks, having a one-month maturity and in a principal amount that is
representative for a single transaction in U.S. Dollars in that market
at that time. If the banks selected by the Remarketing Dealer are not
providing quotations in the manner described by this paragraph, the
rate for the Floating Rate Reset Period following the Reference Rate
Determination Date will be the rate in effect on that Reference Rate
Determination Date.
"Reference Rate Determination Date" shall be the second LIBOR
Business Day preceding each Reference Rate Reset Date.
"Reference Rate Reset Date" means the first Remarketing Date
or the 15th day of each month thereafter until (but excluding) the
Floating Period Termination Date.
"Reference Treasury Dealer" means each of up to five dealers
to be selected by the Company, and their respective successors;
provided that if any of the foregoing or their affiliates ceases to be
a primary U.S. Government securities dealer (a "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer. The Company shall advise the Remarketing Dealer of its
selection of Reference Treasury Dealers no later than five Business
Days prior to the Fixed Rate Remarketing Date. One of such Reference
Treasury Dealers selected by the Company shall be Banc of America
Securities LLC if it is then acting as the Remarketing Dealer.
"Remaining Scheduled Payments" means, with respect to the
Remarketable Notes, the remaining scheduled payments of the principal
thereof and interest thereon, calculated at the Base Rate, that would
be due after the first Remarketing Date to and including the Stated
Maturity Date; provided that if such Remarketing Date is not an
Interest Payment Date for the Remarketable Notes, the amount of the
next succeeding scheduled interest payment thereon will be reduced by
the amount of interest accrued thereon to the first Remarketing Date.
"Remarketing Date(s)" means (a) October 15, 2002 in the event
the Remarketing Dealer elects to remarket the Remarketable Notes and
the Company does not exercise its Floating Period Option or (b) October
15, 2002 and a subsequent remarketing date which shall fall on the 15th
day of any one of the 12 consecutive months subsequent to the first
Remarketing Date until October 15, 2003 if the Remarketing Dealer
elects to remarket the Remarketable Notes and the Company has elected
to exercise its Floating Period Option.
"Stated Maturity Date" means October 15, 2012, or in the event
that the Company elects to exercise its Floating Period Option, the
tenth anniversary of the Fixed Rate Remarketing Date, but not later
than October 15, 2013.
"Treasury Rate" means, with respect to a Remarketing Date, the
rate per annum equal to the semi-annual equivalent yield to maturity of
the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of their principal
amounts) equal to the Comparable Treasury Price for such Remarketing
Date.
(e) Subject to the Remarketing Dealer's election to remarket
the Remarketable Notes and to the Company's election not to exercise its
Floating Period Option, as provided in clause (c) above, the Remarketing Dealer
shall notify the Company, the Trustee and The Depository Trust Company ("DTC")
by telephone, confirmed in writing (which may include facsimile or other
electronic transmission), by 4:00 p.m., New York City time, on the Fixed Rate
Determination Date of the Interest Rate to Maturity of the Remarketable Notes
effective from and including the Fixed Rate Remarketing Date.
(f) Subject to the Remarketing Dealer's election to remarket
the Remarketable Notes as provided in clause (c) above, on any Remarketing Date
the Remarketing Dealer shall sell the total aggregate principal amount of the
Remarketable Notes at the Dollar Price to the Reference Money Market Dealer or
to the Reference Corporate Dealer, whichever is applicable, providing the lowest
Bid. If the lowest Bid is submitted by two or more of the applicable Reference
Dealers, the Remarketing Dealer may sell such Remarketable Notes to one or more
of such Reference Dealers as it shall determine in its sole discretion.
(g) In the event that the Remarketable Notes are remarketed as
provided herein, the Remarketing Dealer shall pay to the Trustee, not later than
12:00 noon, New York City time, on the first Remarketing Date, an amount equal
to 100% of the aggregate principal amount of such Remarketable Notes or on any
subsequent Remarketing Date, an amount equal to the Dollar Price. On such
Remarketing Date, the Remarketing Dealer shall cause the Trustee to make payment
to the DTC participant of each tendering Beneficial Owner of Remarketable Notes
subject to remarketing by book-entry through DTC by the close of business on
such Remarketing Date against delivery through DTC of such Beneficial Owner's
tendered Remarketable Notes, of the purchase price for such tendered
Remarketable Notes that have been purchased for remarketing by the Remarketing
Dealer. The purchase price of such tendered Remarketable Notes shall be equal to
100% of the aggregate principal amount thereof on the first Remarketing Date and
the Dollar Price on the subsequent Remarketing Date. The Company shall make, or
cause the Trustee to make, payment of interest to each Beneficial Owner of
Remarketable Notes due on a Remarketing Date by book entry through DTC by the
close of business on such Remarketing Date.
(h) Subject to Section 12(c) of this Agreement, with respect
to the Remarketable Notes, in the event that (i) the Remarketing Dealer for any
reason does not notify the Company of the Floating Period Interest Rate or of
the Interest Rate to Maturity by 4:00 p.m., New York City time, on the
applicable Determination Date, (ii) prior to any Remarketing Date, the
Remarketing Dealer resigns and no successor has been appointed on or before such
Determination Date, (iii) at any time after the Remarketing Dealer elects on the
Notification Date to remarket such Remarketable Notes, the Remarketing Dealer
elects to terminate the in accordance with its terms, an
event set forth in Section 9 or Section 12 of this Agreement having occurred,
(iv) the Remarketing Dealer for any reason does not elect by notice to the
Company and the Trustee not later than such Notification Date to purchase such
Remarketable Notes for remarketing on such Remarketing Date, (v) the Remarketing
Dealer for any reason does not deliver the purchase price of such Remarketable
Notes to the Trustee on the Remarketing Date as required by clause (g) above or
does not purchase all tendered Remarketable Notes on such Remarketing Date, or
(vi) the Company for any reason fails to redeem the Remarketable Notes from the
Remarketing Dealer following the Company's election to effect such redemption as
specified in Section 4(i) of this Agreement, the Company shall repurchase the
Remarketable Notes in whole on such Remarketing Date at a price equal to 100% of
the aggregate principal amount of the Remarketable Notes if such Remarketing
Date is the first Remarketing Date, or at the Dollar Price on the subsequent
Remarketing Date plus all accrued and unpaid interest, if any. In any such case,
payment will be made by the Company through the Trustee to the DTC participant
of each tendering Beneficial Owner of Remarketable Notes, by book-entry through
DTC by the close of business on such Remarketing Date, against delivery through
DTC of such Beneficial Owner's tendered Remarketable Notes.
(i) If the Remarketing Dealer elects to remarket the
Remarketable Notes as provided in clause (c) above, then not later than 4:00
p.m., New York City time, on the Business Day immediately preceding any
Determination Date, the Company may irrevocably elect, by written notice to the
Remarketing Dealer and the Trustee, to redeem the Remarketable Notes, in whole
but not in part, from the Remarketing Dealer on the Remarketing Date immediately
following such Determination Date at the Dollar Price, plus accrued and unpaid
interest therefor in same-day funds by wire transfer to an account designated by
the Remarketing Dealer on such Remarketing Date, and shall thereafter have no
obligation to pay the Calculation Amount (as defined herein) with respect to the
Remarketable Notes. If the Company fails to redeem the Remarketable Notes from
the Remarketing Dealer following any such election, the Remarketing Dealer will
be deemed to have elected not to remarket the Remarketable Notes, subject to the
obligation of the Company to pay the Calculation Amount to the Remarketing
Dealer as provided in Section 12(e) of this Agreement. If the Company pays the
Calculation Amount to the Remarketing Dealer and repurchases the Remarketable
Notes pursuant to Section 4(h), it shall thereafter have no obligation to pay
the Dollar Price with respect to the Remarketable Notes.
(j) In accordance with the terms and provisions of the
Remarketable Notes, the tender and settlement procedures set forth in this
Section 4, including provisions for payment by the purchaser of Remarketable
Notes in a remarketing or for payment to selling Beneficial Owners of tendered
Remarketable Notes, shall be subject to modification to the extent required by
DTC or, if the book-entry system is no longer available for the Remarketable
Notes at a time of their remarketing, to the extent required to facilitate the
tendering and remarketing of the Remarketable Notes in certificated form. In
addition, the Remarketing Dealer may modify the settlement procedures (to the
extent not inconsistent with the Indenture) in order to facilitate the
settlement process.
(k) In accordance with the terms and provisions of the
Remarketable Notes, the Company hereby agrees that at all times, (i) it will use
its best efforts to maintain the Remarketable Notes in book-entry form with DTC
or any successor thereto and to appoint a successor depositary to the extent
necessary to maintain the Remarketable Notes in book-entry form and (ii) it will
waive any discretionary right it otherwise may have under the Indenture to cause
the Remarketable Notes to be issued in certificated form.
Section 5. Fees and Expenses. Subject to Section 12 of this Agreement,
for its services in performing its duties set forth herein, the Remarketing
Dealer will not receive any fees or reimbursement of expenses from the Company,
unless the Company and the Remarketing Dealer enter into a negotiated
transaction to determine the new interest rate, in lieu of the bidding process
described herein.
Section 6. Resignation of the Remarketing Dealer. The Remarketing
Dealer may resign and be discharged from its duties and obligations hereunder
with respect to the Remarketable Notes at any time, such resignation to be
effective 10 Business Days after delivery of a written notice to the Company and
the Trustee of such resignation. The Remarketing Dealer also may resign and be
discharged from its duties and obligations hereunder at any time with respect to
the Remarketable Notes, such resignation effective immediately, upon termination
of the obligations of the Remarketing Dealer with respect to the Remarketable
Notes under this Agreement in accordance with Section 12(b) hereof. It shall be
the sole obligation of the Company to appoint a successor Remarketing Dealer
with respect to the Remarketable Notes. In the event of the resignation of the
Remarketing Dealer with respect to the Remarketable Notes for any reason other
than upon the termination of the obligations of the Remarketing Dealer with
respect to the Remarketable Notes under this Agreement in accordance with
Section 12(b) hereof, no amount will be due from the Company to the Remarketing
Dealer.
Section 7. Dealing in the Remarketable Notes. Banc of America
Securities LLC, or any subsequent Remarketing Dealer, when acting as the
Remarketing Dealer or in its individual or any other capacity, may, to the
extent permitted by law, buy, sell, hold and deal in any of the Remarketable
Notes. Banc of America Securities LLC, as Holder or Beneficial Owner of
Remarketable Notes, may exercise any vote or join as a Holder or Beneficial
Owner, as the case may be, in any action which any Holder or Beneficial Owner of
Remarketable Notes may be entitled to take pursuant to the Indenture with like
effect as if it did not act in any capacity hereunder. The Remarketing Dealer,
in its capacity either as principal or agent, may also engage in or have an
interest in any financial or other transaction with the Company as freely as if
it did not act in any capacity hereunder.
Section 8. Information. The Company agrees to furnish to the
Remarketing Dealer until the Fixed Rate Remarketing Date (i) copies of each
report or other document mailed or filed by the Company with the Commission,
including the Offering Document relating to the Remarketable Notes (including in
each case any documents incorporated by reference), (ii) notice of the
occurrence of any of the events set forth in clause (c) of Section 9 hereof, and
(iii) in connection with any remarketing, such other information as the
Remarketing Dealer may reasonably request, including, but not limited to, the
financial condition of the Company or any material subsidiary thereof. The
Company agrees to provide the Remarketing Dealer with as many copies of the
foregoing materials and information as the Remarketing Dealer may reasonably
request for use in connection with any remarketing and consents to the use
thereof for such purpose as promptly as practicable after such materials and
information become available.
Section 9. Conditions to Remarketing Dealer's Obligations. The
obligations of the Remarketing Dealer under this Agreement have been undertaken
in reliance on, and shall be subject to, (a) the due performance in all material
respects by the Company of its obligations and agreements as set forth in this
Agreement and the accuracy in all material respects on each Representation Date
of the representations and warranties in this Agreement (without regard to any
materiality qualifications contained therein) and any certificate delivered
pursuant hereto, (b) the due performance in all material respects by the Company
of its obligations and agreements set forth in, and the accuracy in all material
respects solely as of the dates specified therein of the representations and
warranties contained in, the Underwriting Agreement, and (c) the further
condition that none of the following events shall have occurred after the
Remarketing Dealer elects on the Notification Date to remarket the Remarketable
Notes and on or before any Remarketing Date:
(i) the rating of any securities of the Company shall
have been downgraded or put under surveillance or review with negative
implications, including being put on what is commonly termed a "credit
watch" or a "watch list," or withdrawn by a nationally recognized
statistical rating agency;
(ii) without the prior written consent of the Remarketing
Dealer, the Indenture (including the Remarketable Notes) shall have
been amended in any manner, or otherwise contain any provision not
contained therein as of the date hereof, that in either case in the
judgment of the Remarketing Dealer materially changes the nature of the
Remarketable Notes or the remarketing procedures (it being understood
that, notwithstanding the provisions of this clause (ii), the Company
shall not be prohibited from amending the Indenture);
(iii) trading in any securities of the Company shall have
been suspended or materially limited by the Commission, or if trading
generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market shall have been suspended or
materially limited, or minimum or maximum prices for trading shall have
been fixed, or maximum ranges for prices shall have been required, by
any of said exchanges or by such system or by order of the Commission,
the National Association of Securities Dealers, Inc. or any
governmental authority, or if a banking moratorium shall have been
declared by either Federal or New York authorities and, in all such
cases, any such suspension, limitation or moratorium continues to
remain in effect;
(iv) there shall have occurred any material adverse
change in the financial or securities markets in the United States, or
in political, financial or economic conditions in the United States or
any outbreak of hostilities involving the United States or material
escalation thereof or declaration by the United States of a national
emergency or war or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of
which is such as to make it, in the judgment of the Remarketing Dealer,
impracticable to remarket the Remarketable Notes or to enforce
contracts for the sale of the Remarketable Notes;
(v) an Event of Default, or any event which, with the
giving of notice or passage of time, or both, would constitute an Event
or Default, with respect to the Remarketable Notes shall have occurred
and be continuing or an Event of Default or any event which, with the
giving of notice or passage of time, or both, would constitute an Event
of Default with respect to any derivative transaction between the
Company and the Remarketing Dealer effected pursuant to an ISDA Master
Agreement between the Company and the Remarketing Dealer shall have
occurred and be continuing;
(vi) a material adverse change in the consolidated
financial condition, stockholders' equity, results of operations, or
business prospects of the Company and its subsidiaries taken as a whole
the effect of which is such as to make it, in the judgment of the
Remarketing Dealer, impracticable to remarket the Remarketable Notes or
to enforce contracts for the sale of Remarketable Notes;
(vii) if a prospectus is required under the 1933 Act to be
delivered in connection with the remarketing of the Remarketable Notes,
the Company shall fail to furnish to the Remarketing Dealer on any
Remarketing Date the officer's certificate, opinion and comfort letter
referred to in Section 3(e) of this Agreement and such other documents
and opinions as counsel for the Remarketing Dealer may reasonably
require for the purpose of enabling such counsel to pass upon the sale
of the Remarketable Notes in a remarketing as herein contemplated and
related proceedings, or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and the
Remarketing Dealer shall have received on any Remarketing Date a
certificate of the Chairman of the Board, the President, the Chief
Financial Officer or a Vice President of the Company, and the Treasurer
or an Assistant Treasurer of the Company, dated as of such Remarketing
Date, to the effect that (i) the representations and warranties in this
Agreement are true and correct in all material respects with the same
force and effect as though expressly made at and as of such Remarketing
Date, (ii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to
such Remarketing Date and (iii) none of the events specified in clause
(c) (vi) has occurred;
(viii) if fewer than two Reference Dealers shall have
provided the Remarketing Dealer with Bids by 3:30 p.m., New York City
time, on any Determination Date; or
(ix) an Event of Default (as defined in the applicable
instrument establishing or evidencing any Senior Indebtedness of the
Company) shall have occurred and be continuing with respect to any
Senior Indebtedness of the Company having an aggregate principal amount
of not less than $25,000,000. "Senior Indebtedness" shall mean any
indebtedness for borrowed money which is not by its terms subordinate
in right of payment of principal and interest to the Remarketable
Notes.
(x) the Remarketable Notes are not maintained in
book-entry form with DTC or any successor thereto; provided, that the
Remarketing Dealer in its sole discretion and subject to receipt of an
opinion of counsel for the Company reasonably satisfactory to the
Remarketing Dealer may waive the foregoing condition if in the
Remarketing Dealer's judgment the Indenture and the Remarketable Notes
can be amended, and they are amended, so as to permit the remarketing
of the Remarketable Notes in certificated form and otherwise as
contemplated herein.
In furtherance of the foregoing, the effectiveness of the Remarketing
Dealer's election on the Notification Date to remarket the Remarketable Notes
shall be subject to the condition that the Remarketing Dealer shall have
received a certificate of the Chairman of the Board, the President, the Chief
Financial Officer or a Vice President of the Company, and the Treasurer or an
Assistant Treasurer of the Company, dated as of the Notification Date, to the
effect that (i) the Company has, prior to the Remarketing Dealer's election on
the Notification Date to remarket the Remarketable Notes, provided the
Remarketing Dealer with notice of all events as required under Section 3(a) of
this Agreement, (ii) the representations and warranties of the Company in this
Agreement are true and correct in all material respects at and as of the
Notification Date and (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the Notification Date. Such certificate shall be delivered by the Company to the
Remarketing Dealer as soon as practicable following notification by the
Remarketing Dealer to the Company on the Notification Date of its election to
remarket the Remarketable Notes and in any event prior to the first
Determination Date.
In the event of the failure of any of the foregoing conditions, the
Remarketing Dealer may terminate its obligations under this Agreement or
redetermine any of the Floating Period Interest Rates and/or the Interest Rate
to Maturity as provided in Section 12.
Section 10. Indemnification. (a) The Company agrees to indemnify
and hold harmless the Remarketing Dealer and its officers, directors and
employees and each person, if any, who controls the Remarketing Dealer within
the meaning of Section 20 of the 1934 Act as follows:
(i) against any loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of (A) the failure to have
an effective registration statement under the 1933 Act relating to the
Remarketable Notes, if required, or the failure to satisfy the
prospectus delivery requirements of the 1933 Act because the Company
failed to provide the Remarketing Dealer with an updated prospectus for
delivery or (B) any untrue statement or alleged untrue statement of a
material fact contained in any of the Remarketing Materials (including
any incorporated documents), or (C) the omission or alleged omission
therefrom of a material fact necessary to make the statements therein,
in the light of the circumstances in which they were made, not
misleading, or (D) any violation by the Company of, or any failure by
the Company to perform any of its obligations under, this Agreement, or
(E) the acts or omissions of the Remarketing Dealer in connection with
its duties and obligations hereunder except to the extent finally
judicially determined to be due to its gross negligence or willful
misconduct;
(ii) against any loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever arising out of, or based upon, any of items (A)
through (E) in clause (i) above; provided, that (subject to clause (d)
below) such settlement is effected with the written consent of the
Company, which consent shall not be unreasonably withheld; and
(iii) against any expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Remarketing Dealer), reasonably incurred in investigating, preparing or
defending against any litigation or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever arising out of, or based upon, any of items (A) through (E)
in clause (i) above to the extent that any such expense is not paid
under clause (i) or (ii) above; provided, that the foregoing indemnity
shall not apply to any losses, liabilities, claims, damages and
expenses to the extent arising out of any untrue statement or omission
made in reliance upon and in conformity with written information
furnished to the Company by the Remarketing Dealer expressly for use in
the Remarketing Materials.
(b) The Remarketing Dealer agrees to indemnify and hold
harmless the Company, its directors and each of its officers from and against
any loss, liability, claim, damage and expense, as incurred, and will reimburse
the expenses reasonably incurred in investigating or defending against any such
loss, liability, claim, damage and expense, as incurred but only with respect to
untrue statements or omissions made in Remarketing Materials in reliance upon
and in conformity with information furnished to the Company in writing by the
Remarketing Dealer expressly for use in such Remarketing Materials. The
indemnity agreement in this clause (b) shall extend upon the same terms and
conditions to each person, if any, who controls the Company within the meaning
of Section 20 of the 1934 Act.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to clause (a) above, counsel to the indemnified
parties shall be selected by the Company, and, in the case of parties
indemnified pursuant to clause (b) above, counsel to the indemnified parties
shall be selected by Banc of America Securities LLC. An indemnifying party may
participate at its own expense in the defense of any such action; provided that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 10 or 11 hereof (whether or not
the indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by clause (a) (ii) effected without its
written consent if (i) such settlement is entered into more than 90 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) The indemnity agreement contained in this Section 10 shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of the Remarketing Dealer, and shall survive the
termination or cancellation of this Agreement and the remarketing of any
Remarketable Notes hereunder.
Section 11. Contribution. If the indemnification provided for in
Section 10 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Remarketing Dealer on the other hand from the
remarketing of the Remarketable Notes pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Remarketing Dealer on the other hand in connection with the
acts, failures to act, statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Remarketing Dealer on the other hand in connection with the remarketing of the
Remarketable Notes pursuant to this Agreement shall be deemed to be in the same
respective proportions as (i) the aggregate principal amount of the Remarketable
Notes, and (ii) the aggregate positive difference, if any, between the price
paid by the Remarketing Dealer for the Remarketable Notes tendered on a
Remarketing Date and the price at which the Remarketable Notes are sold by the
Remarketing Dealer in the remarketing.
The relative fault of the Company on the one hand and the Remarketing
Dealer on the other hand shall be determined by reference to, among other
things, the responsibility hereunder of the applicable party for any act or
failure to act relating to the losses, liabilities, claims, damages or expenses
incurred or, in the case of any losses, liabilities, claims, damages or expenses
arising out of any untrue or alleged untrue statement of a material fact
contained in any of the Remarketing Materials or the omission or alleged
omission to state a material fact therefrom, whether any such untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the Remarketing
Dealer and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Remarketing Dealer agree that it would not be just
and equitable if contribution pursuant to this Section 11 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 11. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 11 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such act or failure to act or
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 11, the Remarketing
Dealer shall not be required to contribute any amount in excess of the amount by
which the total price at which the Remarketable Notes remarketed by it and
resold to the public were sold to the public exceeds the amount of any damages
which the Remarketing Dealer has otherwise been required to pay by reason of any
act or failure to act for which it is responsible hereunder or any untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 11, each person, if any, who controls the
Remarketing Dealer within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Remarketing
Dealer, and each director of the Company, each officer of the Company who signed
any Offering Document, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company.
Section 12. Termination of or Redetermination of
Interest Rate to Maturity. (a) The obligations of the Remarketing Dealer under
this Agreement shall terminate with respect to the Remarketable Notes on the
effective date of the resignation of the Remarketing Dealer pursuant to Section
6 hereof with respect to the Remarketable Notes or the repurchase of the
Remarketable Notes by the Company pursuant to Section 4(h) hereof or the
redemption of the Remarketable Notes by the Company pursuant to Section 4(i)
hereof or a combination of the two which results in all of the Remarketable
Notes being repurchased or redeemed by the Company.
(b) In addition, the Remarketing Dealer may terminate all of
its obligations under this Agreement with respect to the Remarketable Notes, or
in its sole discretion, its obligations to purchase and remarket the
Remarketable Notes, if the Remarketing Dealer notifies the Company and the
Trustee of its election to do so in a written notice that references this
section, at any time on or before any Remarketing Date, in the event that with
respect to the Remarketable Notes, (i) any of the conditions referred to or set
forth in Section 9(a) or (b) hereof have not been met or satisfied in full, (ii)
any of the events set forth in Section 9(c) shall have occurred after the
Remarketing Dealer elects on the Notification Date to remarket the Remarketable
Notes, (iii) the Remarketing Dealer determines, in its sole discretion, after
consultation with the Company, that it shall not have received all of the
information, whether or not specifically referenced herein, necessary to fulfill
its obligations under this Agreement with respect to the Remarketable Notes, or
(iv) either of the events set forth in Section 9(c)(v) or 9(c)(ix) hereof shall
have occurred at any time and shall not have been cured within 30 days.
(c) Notwithstanding any provision herein to the contrary, in
lieu of terminating this Agreement pursuant to Section 12(b) above, upon the
occurrence of any of the events set forth therein, the Remarketing Dealer, in
its sole discretion at any time between any Determination Date and 3:30 p.m.,
New York City time, on the Business Day immediately preceding any Remarketing
Date, may elect to purchase the Remarketable Notes for remarketing and determine
a new Floating Period Interest Rate or Interest Rate to Maturity in the manner
provided in Section 4(d) of this Agreement, except that for purposes of
determining the new Floating Period Interest Rate or Interest Rate to Maturity
pursuant to this paragraph the Determination Date referred to therein shall be
the date of such election and redetermination. The Remarketing Dealer shall
notify the Company, the Trustee and DTC by telephone, confirmed in writing
(which may include facsimile or other electronic transmission), by 4:00 p.m.,
New York City time, on the date of such election, of the new Floating Period
Interest Rate or Interest Rate to Maturity, as the case may be, of the
Remarketable Notes. Thereupon, such new Floating Period Interest Rate or
Interest Rate to Maturity shall supersede and replace any Floating Period
Interest Rate or Interest Rate to Maturity previously determined by the
Remarketing Dealer and, absent manifest error, shall be binding and conclusive
upon the Beneficial Owners and Holders of the Remarketable Notes on and after
such Remarketing Date, the Company and the Trustee; provided, that the
Remarketing Dealer, by redetermining the Floating Period Interest Rate or
Interest Rate to Maturity upon the occurrence of any event set forth in Section
12(b) as set forth above, shall not thereby be deemed to have waived its right
to determine a new Floating Period Interest Rate or Interest Rate to Maturity or
terminate this Agreement upon the occurrence of any other event set forth in
Section 12(b).
(d) If this Agreement is terminated pursuant to this Section
12, such termination shall be without liability of any party to any other party,
except that, in the case of termination pursuant to Section 12(b) of this
Agreement, the Company shall reimburse the Remarketing Dealer for all of its
reasonable out-of-pocket expenses incurred in connection with this Agreement or
the remarketing of the Remarketable Notes pursuant to this Agreement, including
the reasonable fees and disbursements of counsel for the Remarketing Dealer, and
except as further set forth in Section 12(e) below. Sections 1, 10, 11, 12(d),
and 12(e) shall survive such termination and remain in full force and effect.
(e) In the case of either (i) termination of this Agreement
pursuant to Section 12(b), (ii) the occurrence, prior to the Remarketing
Dealer's election on the Notification Date to remarket the Remarketable Notes,
of any event set forth in Section 9(c)(ii) or (v), or (iii) any failure by the
Company to redeem such Remarketable Notes from the Remarketing Dealer following
any election by the Company to effect such redemption as specified in Section
4(i) (each a "Calculation Event"), the Company shall immediately following the
Calculation Amount Determination Date (as defined below) pay the Remarketing
Dealer, in same-day funds by wire transfer to an account designated by the
Remarketing Dealer, the fair market value, calculated as set forth below, of the
Remarketing Dealer's rights to purchase and remarket such Remarketable Notes
pursuant to this Agreement (the "Calculation Amount").
The Calculation Amount will be determined by the Remarketing Dealer in
good faith and on a commercially reasonable basis and will be equal to an
amount, if any, that would be paid by the Remarketing Dealer in consideration of
an agreement between the Remarketing Dealer and a Reference Dealer (other than
the Remarketing Dealer) to enter into a transaction that would have the effect
of preserving for the Remarketing Dealer the economic equivalent of any payment
or delivery (whether the underlying obligation was absolute or contingent) by
the Remarketing Dealer and Beneficial Owners that would, but for the occurrence
of the Calculation Event, have been required on a Remarketing Date. In
determining the Calculation Amount, the Remarketing Dealer will be entitled to
assume that such Remarketable Notes are obligations issued by the United States
Department of the Treasury backed by the full faith and credit of the United
States of America. The Remarketing Dealer shall determine the applicable
Calculation Amount as soon as practicable after the occurrence of any of the
events as described in (i) through (iii) in the preceding paragraph (the
"Calculation Amount Determination Date"). The Remarketing Dealer shall promptly
notify the Company of the Calculation Amount Determination Date and the
Calculation Amount by telephone, confirmed in writing (which may include
facsimile or other electronic transmission). The Calculation Amount, absent
manifest error, shall be binding and conclusive upon the parties hereto.
(f) This Agreement shall not be subject to termination by
the Company.
Section 13. Remarketing Dealer's Performance; Duty of Care. The duties
and obligations of the Remarketing Dealer shall be determined solely by the
express provisions of this Agreement and the Indenture. No implied covenants or
obligations of or against the Remarketing Dealer shall be read into this
Agreement or the Indenture. In the absence of bad faith on the part of the
Remarketing Dealer, the Remarketing Dealer may conclusively rely upon any
document furnished to it, which purports to conform to the requirements of this
Agreement and the Indenture, as to the truth of the statements in any of such
documents. The Remarketing Dealer shall be protected in acting upon any document
or communication reasonably believed by it to have been signed, presented or
made by the proper party or parties. In connection with this Agreement, the
Remarketing Dealer shall incur no liability to the Company or to any Beneficial
Owner or Holder of Remarketable Notes in its individual capacity or as
Remarketing Dealer for any action or failure to act in connection with
remarketing or otherwise, except as a result of gross negligence or willful
misconduct on its part.
Section 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE.
Section 15. Term of Agreement. Unless otherwise terminated in
accordance with the provisions hereof, this Agreement shall remain in full force
and effect from the date hereof until the earlier of the first day thereafter on
which no Remarketable Notes are outstanding or the Fixed Rate Remarketing Date.
Regardless of any termination of this Agreement pursuant to any of the
provisions hereof, the obligations of the Company pursuant to Sections 10, 11
and 12 hereof shall remain operative and in full force and effect until fully
satisfied.
Section 16. Successors and Assigns. The rights and obligations of the
Company hereunder may not be assigned or delegated to any other person without
the prior written consent of the Remarketing Dealer. The rights and obligations
of the Remarketing Dealer hereunder may not be assigned or delegated to any
other person without the prior written consent of the Company, except that the
Remarketing Dealer may assign or delegate its rights and obligations hereunder
in whole or in part to an affiliate, in each case, without the prior written
consent of the Company. This Agreement shall inure to the benefit of and be
binding upon the Company and the Remarketing Dealer and their respective
successors and assigns, and will not confer any benefit upon any other person,
partnership, association or corporation other than persons, if any, controlling
the Remarketing Dealer within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, or any indemnified party to the extent provided in
Section 10 hereof, or any person entitled to contribution to the extent provided
in Section 11 hereof. The terms "successors" and "assigns" shall not include any
purchaser of any Remarketable Notes because of such purchase.
Section 17. Headings. Section headings have been inserted in this
Agreement as a matter of convenience of reference only, and it is agreed that
such section headings are not a part of this Agreement and will not be used in
the interpretation of any provisions of this Agreement.
Section 18. Severability. If any provision of this Agreement shall be
held or deemed to be or shall, in fact, be invalid, inoperative or unenforceable
as applied in any particular case in any or all jurisdictions because it
conflicts with any provision of any constitution, statute, rule or public policy
or for any other reason, such circumstances shall not have the effect of
rendering the provision in question invalid, inoperative or unenforceable in any
other case, circumstance or jurisdiction, or of rendering any other provision or
provisions of this Agreement invalid, inoperative or unenforceable to any extent
whatsoever.
Section 19. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
Section 20. Amendments. This Agreement may be amended by any
instrument in writing signed by each of the parties hereto so long as this
Agreement as amended is not inconsistent with the Indenture in effect as of the
date of any such amendment.
Section 21. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing (which may include facsimile or other electronic
transmission) and shall be deemed to have been validly given or made when
delivered or mailed, registered or certified mail, return receipt requested and
postage prepaid, addressed as follows:
(a) to the Company:
CenturyTel, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Legal Department and Treasury Department
(b) to Banc of America Securities LLC:
Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Syndicate
or to such other address as the Company or the Remarketing Dealer shall
specify in writing.
IN WITNESS WHEREOF, each of the Company and the Remarketing Dealer has
caused this to be executed in its name and on its behalf
by one of its duly authorized officers as of the date first above written.
CENTURYTEL, INC.
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
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Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Title: Executive Vice President
BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Principal