CENTURYTEL, INC. $____________ ___% Senior Notes, Series ______, due ______ $____________ ___% Senior Notes, Series ______, due ______ UNDERWRITING AGREEMENT
Exhibit
1.1
CENTURYTEL,
INC.
$____________
___% Senior Notes, Series ______, due ______
$____________
___% Senior Notes, Series ______, due ______
[date]
[name]
As
Representatives of
the
several Underwriters
[address]
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 $______________ principal amount of the Company’s _____% Senior
Notes, Series _____, due _____ (the “Series _____ Notes”) and $____________
principal amount of the Company’s _____% Senior Notes, Series _____, due _____
(the “Series _____ Notes” and, together with the Series _____ Notes, the
“Securities”) to be issued pursuant to an Indenture dated as of March 31, 1994
(the “Indenture”), between the Company and Regions Bank (successor to First
American Bank & Trust of Louisiana and Regions Bank of Louisiana), as
Trustee (the “Trustee”). The Securities will be sold to you and to the other
underwriters named in Schedule I (collectively, the “Underwriters”) for whom you
are acting as representatives (the “Representatives”).
The
purchase price for the Securities to be paid by the several Underwriters shall
be agreed upon by the Company and the Representatives, acting on behalf of the
several 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 telecommunication among the
Company and the Representatives 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 to “this
Agreement” and to the phrase “herein” shall be deemed to include the Price
Determination Agreement.
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1.
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Agreement to Sell and
Purchase.
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(a) On the
basis of the representations, warranties and agreements of the Company contained
herein 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 8 hereof, all
at the purchase price plus accrued interest, if any, from _________ to the
Closing Date (as hereinafter defined), 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).
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 _______________ 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, as may be agreed upon by the Company and the
Underwriters (such date is hereinafter referred to as the “Closing
Date”).
The
Securities of each series 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 the Representatives of the several
Underwriters, 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.
3. Representations and
Warranties of the Company. The Company represents and warrants to and
covenants with each Underwriter that:
(a) The
Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the “Securities Act”), a
registration statement on Form S-3 (File No. 333-______), including a prospectus
(the “Basic Prospectus”), relating to, among other securities, the debt
securities to be issued from time to time by the Company. The Company has also
filed, or proposes to file, with the Commission pursuant to Rule 424 under the
Securities Act a prospectus supplement specifically relating to the Securities
(the “Prospectus Supplement”).
The
registration statement, at the Effective Time (as defined herein), including the
information, if any, deemed pursuant to Rule 430A, 430B or 430C under the
Securities Act to be part of the registration statement at the time of such
effectiveness (“Rule 430 Information”), is referred to herein as the
“Registration Statement;” and as used herein, the term “Prospectus” means the
Basic Prospectus as supplemented by the Prospectus Supplement in the form first
used (or made available upon request of purchasers pursuant to Rule 173 under
the Securities Act) in connection with confirmation of sales of the Securities
and the term “Preliminary Prospectus” means the preliminary prospectus
supplement dated _______ specifically relating to the Securities together with
the Basic Prospectus. References herein to the Registration Statement, the
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated or deemed to be incorporated by reference therein as
of the Effective Time with respect to the Registration Statement or the date of
the Preliminary Prospectus or the date of the Prospectus, as the case may be.
The terms “supplement,” “amendment” and “amend” as used herein with respect to
the Registration Statement, the Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include any documents filed by the Company under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the “Exchange Act”) subsequent to the
date of this Agreement which are deemed to be incorporated by reference therein.
For purposes of this Agreement, the term “Effective Time” means the effective
date of the Registration Statement with respect to the offering of Securities,
as determined for the Company pursuant to Section 11 of the Securities Act and
Item 512 of Regulation S-K, as applicable. 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 “Delayed Offering” means an
offering of securities pursuant to Rule 415 under the Securities Act which does
not commence promptly after the Effective Time.
At or
prior to the Time of Sale (as defined in the Price Determination Agreement), the
Company had prepared the following information (collectively, the “Time of Sale
Information”): the Preliminary Prospectus and each Issuer Free Writing
Prospectus (as defined herein) listed on Schedule III hereto.
(b) The
Registration Statement has become effective under the Securities Act. No order
suspending the effectiveness of the Registration Statement has been issued by
the Commission and no proceeding for that purpose pursuant to Section 8A of the
Securities Act against the Company or related to the offering has been initiated
or, to the best knowledge of the Company, threatened by the Commission; as of
the Effective Time, the Registration Statement complied in all material respects
with the Securities Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively, the “Trust
Indenture Act”), and did not contain any 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 not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto and as of the Closing Date,
the Prospectus complied in all material respects with the Securities Act and the
Trust Indenture Act and did not and will not contain any 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; provided that the
Company makes no representation and warranty with respect to (i) that part of
the Registration Statement that constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii)
any statements or omissions in the Registration Statement and the Prospectus and
any amendment or supplement thereto made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter through the
Representatives expressly for use therein.
(c) The Time
of Sale Information, at the Time of Sale, did not, and at the Closing Date 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; provided that the
Company makes no representation and warranty with respect to any statements or
omissions made in the Time of Sale Information in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the Representatives expressly for use in such Time of Sale
Information.
(d) The
Company has not prepared, used, authorized or approved and will not prepare,
use, authorize or approve any “written communication” (as defined in Rule 405
under the Securities Act) that constitutes an offer to sell or solicitation of
an offer to buy the Securities (each such communication by the Company or its
agents and representatives (other than a communication referred to in clauses
(i), (ii) and (iii) below), an “Issuer Free Writing Prospectus”) other than (i)
any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of
the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary
Prospectus, (iii) the Prospectus, (iv) the documents listed on Schedule III to
this Agreement as constituting part of the Time of Sale Information and (v) any
electronic road show or other written communications, in the case of clause (v)
approved in advance by the Representatives. Each such Issuer Free Writing
Prospectus complied in all material respects with the Securities Act, has been
or will be (within the time period specified in Rule 433) filed in accordance
with the Securities Act (to the extent required thereby) and, when taken
together with each such other Issuer Free Writing Prospectus and the Preliminary
Prospectus did not, and at the Closing Date 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; provided that the Company makes no
representation and warranty with respect to any statements or omissions made in
each such Issuer Free Writing Prospectus in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter through the
Representatives expressly for use in any such Issuer Free Writing
Prospectus.
(e) The
documents which are incorporated by reference in the Registration Statement, the
Prospectus and the Time of Sale Information 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 Securities Act or the Exchange Act, as applicable; and any
documents so filed and incorporated by reference subsequent to the Effective
Time shall, when they are filed with the Commission, conform in all material
respects with the requirements of the Securities Act or the Exchange Act, as
applicable.
(f) 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 or limited
liability company 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 substantially as
described in the Registration Statement and the 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 effect on the Company
and its subsidiaries, taken as a whole. For purposes of this Agreement, (i)
“subsidiaries” shall mean (a) the Company’s directly and indirectly
majority-owned corporate subsidiaries and (b) the Company’s directly and
indirectly majority-owned limited liability companies. Complete and correct
copies of the articles of incorporation, 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 between the Time of Sale and the Closing Date.
(g) 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.
(h) The
description of the Securities in each of the Registration Statement, the
Prospectus and the Time of Sale Information 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.
(i) The
financial statements and schedules included or incorporated by reference in the
Registration Statement, the Prospectus or the Time of Sale Information present
fairly in all material respects 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 generally accepted accounting principles applied
on a consistent basis throughout the entire period involved, except as otherwise
disclosed in the Registration Statement, the Prospectus or the Time of Sale
Information. The selected consolidated financial data included in the
Registration Statement, the Prospectus or the Time of Sale Information present
fairly in all material respects as of the date therof the information shown
therein and have been compiled on a basis consistent with that of the audited
consolidated financial statements of the Company included in the Registration
Statement, the Prospectus or the Time of Sale Information. KPMG LLP (“KPMG”),
who have reported on certain financial statements and schedules of the Company,
are independent accountants with respect to the Company as required by the
Securities Act.
(j) Subsequent
to the respective dates as of which information is given in the Prospectus and
prior to the Closing Date, except as set forth in or contemplated by the
Registration Statement and the Prospectus, (i) there has not been and will not
have been any material adverse change in the business, properties, condition
(financial or otherwise) or results of operations of the Company and its
subsidiaries, taken as a whole, (ii) except in the ordinary course of business,
neither the Company nor any of the Subsidiaries has incurred nor will it
voluntarily incur any liabilities or obligations, direct or contingent, that are
material to the Company and its subsidiaries, taken as a whole, and (iii) the
Company has not and will not have paid or declared any dividends or other
distributions of any kind on any class of its capital stock except cash
dividends paid in the ordinary course of business and consistent with past
practice.
(k)
The
Company is not 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.
(l) Except as
set forth in the Registration Statement, the Prospectus or the Time of Sale
Information, 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 materially and adversely affect the business, properties, condition
(financial or otherwise) or results of operations of the Company and its
subsidiaries, taken as a whole. 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 materially adverse effect on the business, properties, condition
(financial or otherwise) or results of operations of the Company and its
subsidiaries, taken as a whole, and neither the Company nor any of the
Subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such franchise, certificate, authority or permit which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would be likely to materially and adversely affect the business,
properties, condition (financial or otherwise) or results of operations of the
Company and its subsidiaries, taken as a whole, (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 materially
adversely affect the business, properties, condition (financial or otherwise) or
results of operations of the Company and its subsidiaries, taken as a whole, 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 materially adversely affect the business,
properties, condition (financial or otherwise) or results of operations of the
Company and its subsidiaries, taken as a whole. 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 effect on the Company and its subsidiaries, taken as a whole;
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.
(m) 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 or the
Securities by the Company, (ii) the authorization, offer, issuance, transfer,
sale or delivery of the Securities by the Company in accordance herewith 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
under the Securities Act or the Trust Indenture Act 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.
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 executed and delivered by the Representatives, constitutes a valid and
binding agreement of the Company and is 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 and, constitutes a
valid and binding agreement of the Company and is 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. The
execution, delivery and performance by the Company of this Agreement and the
Securities and the consummation of the transactions contemplated hereby and
thereby (a) will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement 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 is bound or to which any of the property or assets of
the Company or any of the Subsidiaries is subject, which conflict, breach,
violation, or default would individually, or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole; and (b)
will not result in any violation of (i) the provisions of the articles of
incorporation or by-laws (or comparable instruments) of the Company or any of
the Subsidiaries or (ii) any existing statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company’s or any of the Subsidiaries’ properties, which violation, would,
individually, or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(n) The
Company and each of the Subsidiaries has good and marketable title to all
properties and assets owned by it that are material to the business or
operations of the Company and its subsidiaries, taken as a whole. 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.
(o) 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.
(p) The
Company maintains (x) systems of internal controls over financial reporting (as
defined in Rule 15d-15 under the Exchange Act) 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, and that
comply in all material respects with the requirements of, Rule 15d-15 under the
Exchange Act.
(q) (y) 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 file each of the Preliminary Prospectus and the Prospectus in a
form approved by the Underwriters with the Commission pursuant to Rule 424 under
the Securities Act not later than the close of business on the second business
day following the date of first use, with respect to the Preliminary Prospectus,
and the date of determination of the public offering price of the Securities,
with respect to the Prospectus or, if applicable, such earlier time as may be
required by Rule 424(b) and Rule 430A, 430B or 430C under the Securities
Act. The Company will prepare final term sheets in a form approved by
the Representatives (the “Final Term Sheets”) and will file any Issuer Free
Writing Prospectus (including the Final Term Sheets) to the extent required by
Rule 433 under the Securities Act; and the Company will promptly furnish copies
of the Preliminary Prospectus, the Prospectus and each Issuer Free Writing
Prospectus (to the extent not previously delivered) to the Underwriters in New
York City in such quantities as the Representatives may reasonably
request.
(b) The
Company will not, from the Time of Sale until the end of such period as the
Prospectus is required by law to be delivered (or required to be delivered but
for Rule 172 under the Securities Act) in connection with sales of the
Securities by an Underwriter or dealer, file any amendment or supplement to the
Registration Statement, any Issuer Free Writing Prospectus, the Preliminary
Prospectus or the 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.
(c) 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, the Preliminary Prospectus, the
Prospectus or any Issuer Free Writing Prospectus or for additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or preventing or suspending the use
of the Preliminary Prospectus, the Prospectus or any Issuer Free Writing
Prospectus, or the initiation of any proceedings for that purpose or the threat
thereof, or pursuant to Section 8A of the Securities Act and (iv) 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, the Preliminary Prospectus, the Prospectus or any Issuer Free
Writing Prospectus or the offering of the Securities. If at any time the
Commission shall issue any order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of the Preliminary
Prospectus, the Prospectus or any Issuer Free Writing Prospectus, the Company
will make every reasonable effort to obtain the withdrawal of such order at the
earliest possible moment.
(d) If
and to the extent not already furnished or publicly available, 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 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.
(e) The
Company will not make any offer relating to the Securities that would constitute
an Issuer Free Writing Prospectus without the prior written consent of the
Representatives, which consent shall be in writing for any Issuer Free Writing
Prospectus other than the Final Term Sheets.
(f) The
Company will, pursuant to reasonable procedures developed in good faith, retain
copies of each Issuer Free Writing Prospectus that is not filed with the
Commission in accordance with Rule 433 under the Securities Act.
(g) The
Company will comply with all the provisions of any undertakings contained in the
Registration Statement.
(h) At
the Time of Sale, and thereafter from time to time, the Company will deliver to
the Underwriters, without charge, as many copies of the Preliminary Prospectus,
the Prospectus, any Issuer Free Writing Prospectus or any supplement thereto, as
the Underwriters may reasonably request. The Company consents to the use of the
Preliminary Prospectus, the Prospectus, any Issuer Free Writing 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 (or required to be delivered but for Rule 172
under the Securities Act) in connection therewith. If during such period of
time, any event shall occur which in the judgment of the Company should be set
forth in the Time of Sale Information and the 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 Time of
Sale Information and the 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 the Preliminary Prospectus or the Prospectus,
unless a draft thereof shall first have been submitted to the Underwriters
within a reasonable period of time prior to the filing thereof.
(i) 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.
(j) 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 Time of Sale,
within the meaning of and satisfying the provisions of Section 11(a) of the
Securities Act (including Rule 158 thereunder).
(k) 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, the Preliminary Prospectus, the
Prospectus, the Time of Sale Information, any Issuer Free Writing Prospectus and
any amendment or supplement to the Registration Statement, the Preliminary
Prospectus, the Prospectus, the Time of Sale Information or any Issuer Free
Writing 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, the Preliminary Prospectus, the
Prospectus, the Time of Sale Information or any Issuer Free Writing 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(i) 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.
(l) 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 8 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.
(m) Until
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 and (ii) the incurrence
of indebtedness under the Company’s credit facilities or through commercial
paper issuances.
5. Agreements of the
Underwriters.
Each Underwriter hereby represents and
agrees that:
(a) It
has not and will not use, authorize use of, refer to, or participate in the
planning for use of, any “free writing prospectus” (as defined in Rule 405 under
the Securities Act) (a “Free Writing Prospectus”) other than (i) a Free Writing
Prospectus that, solely as a result of use by such Underwriter, would not
trigger an obligation to file such Free Writing Prospectus with the Commission
pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Schedule
III to this Agreement or prepared pursuant to Section 3(d) or Section 4(a) above
(including any electronic road show), or (iii) any Free Writing Prospectus
prepared by such Underwriter and approved by the Company in advance in
writing.
(b) It
will, pursuant to reasonable procedures developed in good faith, retain copies
of, and comply with any legending requirements applicable to, each free writing
prospectus used or referred to by it, in accordance with Rule 433 under the
Securities Act.
(c) It
is not subject to any pending proceeding under Section 8A of the Securities Act
with respect to the offering (and will promptly notify the Company if any such
proceeding against it is initiated prior to the end of such period as the
Prospectus is required by law to be delivered (or required to be delivered but
for Rule 172 under the Securities Act) in connection with sales of the
Securities by an Underwriter or dealer).
(d) Unless
otherwise agreed by the parties hereto and except as otherwise provided in
Section 4, whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, the Underwriters will pay, or
reimburse if paid by the Company, all costs and expenses incident to the
performance of the obligations of the Underwriters under this
Agreement.
6. 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 in all material respects, 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 or
preventing or suspending the use of the Preliminary Prospectus, the Prospectus
or any Issuer Free Writing Prospectus shall be in effect and no proceedings for
that purpose or pursuant to Section 8A of the Securities Act 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, (iii) the Company shall have
filed the Prospectus pursuant to Rule 424 under the Securities Act and shall
have made all other filings (including, without limitation, the Final Term
Sheets) required by Rule 424 or Rule 433 under the Securities Act within the
time periods required by such rules and (iv) after the Time of Sale, no
amendment or supplement to the Registration Statement, the Preliminary
Prospectus, the Prospectus or any Issuer Free Writing 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, the Time of Sale Information and the Prospectus (excluding any
amendment or supplement thereto) (i) there shall not have been 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 Registration
Statement, the Time of Sale Information and the Prospectus, and (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, the Time of Sale
Information and the Prospectus, the effect of which any such case described in
clause (i) or (ii) is, in the reasonable 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 Time of Sale Information and the
Prospectus.
(c) On
or after the date 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; or (iv) the
outbreak or escalation of hostilities or other international or national
calamity or crisis, if the effect of any such event specified in this clause
(iv), in the Representatives’ reasonable 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 Time of Sale
Information and the Prospectus.
(d) On
or after the date hereof no downgrading shall have occurred in the rating
accorded the Company’s debt securities by any “nationally recognized statistical
rating organization”, as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Securities Act.
(e) Since
the respective dates as of which information is given in the Registration
Statement and the Time of Sale Information, 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 effect on the Company and its subsidiaries, taken as a
whole.
(f) 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,
Carrère & ▇▇▇▇▇▇▇, L.L.P., special counsel to the Company, to the effect set
forth in Exhibit B and Exhibit C hereto, respectively.
(g) On
the Closing Date, the Underwriters shall have received an opinion, dated the
Closing Date, from ______________________, 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,
Carrère & ▇▇▇▇▇▇▇, 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.
(h) 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, the Time of Sale
Information and the Prospectus shall have furnished to the Underwriters a
letter, dated the respective dates of delivery thereof, in form and substance
satisfactory to the Underwriters.
(i) 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,
the Time of Sale Information and the Prospectus and (A) the Registration
Statement, as of the Effective Time (including any Rule 430 Information), 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, (B) the Time of Sale Information, at the Time
of Sale, 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 misleading, (C) the
Prospectus, as of its date and as of the Closing Date, 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, Prospectus or Time of Sale
Information, 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 (D) since the Time of
Sale, no event has occurred as a result of which it is necessary to supplement
the Time of Sale Information or the 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 that upon such filing would be deemed to be
incorporated by reference into the 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 in all material respects.
(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 in
all material respects.
7. 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 Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or in any prior registration statement
to which the Prospectus, as a combined prospectus under Rule 429 of the
Securities Act, may relate) or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or (ii) any untrue statement or alleged
untrue statement of a material fact contained in the Preliminary Prospectus, the
Prospectus and any other prospectus relating to the Securities (or any amendment
or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale
Information, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, 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 the
Registration Statement, the Basic Prospectus, the Preliminary Prospectus, the
Prospectus, and any other prospectus relating to the Securities, any Issuer Free
Writing Prospectus or any Time of Sale Information, or any such amendment or
supplement, in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through the Representatives expressly for
use therein.
(b) Each
Underwriter, severally, but not jointly, will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Securities 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 the Registration Statement, the Preliminary
Prospectus, the Prospectus, and any other prospectus relating to the Securities,
any Issuer Free Writing Prospectus or any Time of Sale Information, 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 the Registration
Statement, the Preliminary Prospectus, the Prospectus, and any other prospectus
relating to the Securities, any Issuer Free Writing Prospectus or any Time of
Sale Information, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the Representatives 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, 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 7 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 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. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities 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 7 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 Securities Act; and the obligations of the
Underwriters under this Section 7 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 Securities
Act.
8. 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. 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 Prospectus or in any
other documents or arrangements may be effected. Any action taken pursuant to
this Section 8 shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
9. Termination. Until
the Closing Date, this Agreement may be terminated by the Representatives on
behalf of the Underwriters by giving notice as hereinafter provided to the
Company if the Company will have refused at or prior to the Closing Date, to
perform any agreement on its part to be performed hereunder after being
requested in writing to perform such agreement. Any termination of this
Agreement pursuant to this Section 9 will be without liability on the part of
the Company or any Underwriter, except as otherwise provided in Sections 4(k),
4(l), 5(d) and 7 hereof.
10. 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 the Representatives at the offices
of ________________________. Any such notice shall be effective only
upon receipt. Any notice under Section 7 or 8 may be made by facsimile
transmission, email or 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 7, 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.
Please
confirm that the foregoing correctly sets forth the agreement between the
Company and the several Underwriters.
|
Very
truly yours,
|
||
|
CENTURYTEL,
INC.
|
||
|
By:
/s/___________________________
|
||
|
Name:
|
||
|
Title:
|
||
Confirmed
as of the date first
above
mentioned:
[names]
Acting on
behalf of themselves
and as
the Representatives
of the
other several Underwriters
named in
Schedule I hereof.
|
By:
[name]
|
|
|
By:
/s/____________________________
|
|
|
Name:
|
|
|
Title:
|
SCHEDULE
I
UNDERWRITERS
|
Name
|
Principal
Amount of
Series ________ Notes
Notes To Be Purchased
|
|
_____________________________
|
------------------------------------------------------ |
|
_____________________________
|
$ |
| _______________________________ | |
| Total --------------------------------- | $ |
| =============================== |
SCHEDULE
II
SUBSIDIARIES
[To
come]
SCHEDULE
III
TIME OF
SALE INFORMATION
[To
come]
EXHIBIT
A
CENTURYTEL,
INC.
_____________________________
PRICE
DETERMINATION AGREEMENT
-----------------------------
[date]
[name]
As
Representatives of
the
several Underwriters
[address]
Dear
Ladies and Gentlemen:
Reference
is made to the Underwriting Agreement, dated ___________ (the “Underwriting
Agreement”), among CenturyTel, Inc., a Louisiana corporation (the “Company”),
and the several Underwriters named in Schedule I thereto or hereto (the
“Underwriters”), for whom [name] are acting as representatives
(the “Representatives”). The Underwriting Agreement
provides for the purchase by the Underwriters from the Company, subject to the
terms and conditions set forth therein, of an aggregate of $_____________
principal amount of the Company’s ___% Senior Notes, Series _____, due ____ (the
“Series _____ Notes”) and $____________ principal amount of the Company’s _____%
Senior Notes, Series _____, due _____ (the “Series _____ Notes” and, together
with the Series _____ Notes, the “Securities”) to be issued pursuant to an
Indenture dated as of March 31, 1994 between the Company and Regions Bank
(successor to First American Bank & Trust of Louisiana and Regions Bank of
Louisiana), as Trustee. This Agreement is the Price Determination Agreement
referred to in the Underwriting Agreement.
For all
purposes of the Underwriting Agreement, “Time of Sale” means ___ p.m. on the
date of this Price Determination Agreement.
Pursuant
to Section 1 of the Underwriting Agreement, the undersigned agree with the
Representatives that the purchase price for the Securities to be paid by each of
the several Underwriters shall be ___% of the aggregate principal amount of the
Series _____ Notes and _____% of the aggregate principal amount of the Series
_____ Notes set forth opposite the name of such Underwriter in Schedule I
attached hereto.
The
Company represents and warrants to each of the Underwriters that the
representations and warranties of the Company set forth in Section 3 of the
Underwriting Agreement are accurate in all material respects as
though
expressly
made at and as of the date hereof.
As
contemplated by the Underwriting Agreement, attached as Schedule I is a
completed list of the several Underwriters, which shall be a part of this
Agreement and the Underwriting Agreement.
THIS
AGREEMENT SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
If the
foregoing is in accordance with your understanding of the agreement among the
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 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:
[name]
Acting on
behalf of themselves
and as
the Representatives
of the
other several Underwriters
named in
Schedule I hereof.
[name]
By:
__________________________________
Name:
Title:
[name]
By:
__________________________________
Name:
Title:
EXHIBITS
B AND C INTENTIONALLY DELETED