Exhibit 1.3
EXECUTION COPY
, dated as of February 2, 2005 (this "Agreement"),
by and between CenturyTel, Inc., a Louisiana corporation (the "Company"),
Wachovia Bank, National Association, a national banking association organized
and existing under the laws of the United States, not individually but solely as
purchase contract agent (the "Purchase Contract Agent") and as attorney-in-fact
of the holders of Purchase Contracts (as defined in the Purchase Contract
Agreement (as defined herein)), and Banc of America Securities LLC, X.X. Xxxxxx
Securities Inc. and Wachovia Capital Markets, LLC, as remarketing agents and
reset agents (the "Remarketing Agents").
WITNESSETH:
WHEREAS, under the Purchase Contract Agreement, dated as of May 1,
2002, by and between the Purchase Contract Agent and the Company (the "Purchase
Contract Agreement"), the Company issued $500,000,000 aggregate Stated Amount of
its Equity Units (the "Equity Units"), which initially consisted of 20,000,000
Corporate Units referred to as "Corporate Units";
WHEREAS, concurrently in connection with the issuance of the Equity
Units, the Company issued $500,000,000 aggregate principal amount of Senior
Notes, Series J, due 2007 (the "Senior Notes");
WHEREAS, the Senior Notes forming a part of the Corporate Units were
pledged pursuant to the Pledge Agreement (the "Pledge Agreement"), dated as of
May 1, 2002, by and among the Company, JPMorgan Chase Bank, N.A., as Collateral
Agent, Custodial Agent and Securities Intermediary, and the Purchase Contract
Agent, to secure the obligations of holders of Corporate Units under the related
Purchase Contracts on the Purchase Contract Settlement Date;
WHEREAS, the Company desires to retain the Remarketing Agents to
remarket on February 10, 2005 (the "Initial Remarketing Date") the Senior Notes
beneficially owned by holders of Corporate Units ("Corporate Unit Holders") and
Senior Notes not constituting components of Corporate Units beneficially owned
by holders who elect to have their Senior Notes remarketed ("Participating Note
Holders");
WHEREAS, in the event of a Failed Initial Remarketing, the Senior Notes
beneficially owned by Corporate Unit Holders and Participating Note Holders will
be remarketed by the Remarketing Agents on the third Business Day immediately
preceding March 15, 2005 (the "Second Remarketing Date");
WHEREAS, in the event of a Failed Second Remarketing, the Senior Notes
beneficially owned by Corporate Unit Holders and Participating Note Holders will
be remarketed by the Remarketing Agents on the third Business Day immediately
preceding preceding April 15, 2005 (the "Third Remarketing Date");
WHEREAS, in the event of a Failed Third Remarketing, the Senior Notes
beneficially owned by Participating Note Holders and the Senior Notes
beneficially owned by Corporate Unit Holders who have elected not to settle the
Purchase Contracts related to such Corporate Units by Cash Settlement (or have
so elected, but have not paid the Purchase Price on or prior to the fourth
Business Day immediately preceding the Purchase Contract Settlement Date) and
who have not early settled their Purchase Contracts will be remarketed by the
Remarketing Agents on the third Business Day immediately preceding the Purchase
Contract Settlement Date;
WHEREAS, in the event of a Successful Initial Remarketing, the
applicable interest rate on the Senior Notes will be reset on the Initial
Remarketing Date to the Reset Rate, which will be determined by the Remarketing
Agents as the interest rate that such Senior Notes should bear in order for the
Applicable Principal Amount of the Senior Notes to have an approximate aggregate
market value of approximately 100.25% of the Treasury Portfolio Purchase Price
on the Initial Remarketing Date, provided that in the determination of such
Reset Rate, the Company shall, if applicable, limit the Reset Rate to the
maximum rate, if any, permitted by applicable law;
WHEREAS, in the event of a Failed Initial Remarketing, the applicable
interest rate on the Senior Notes will be reset on the Second Remarketing Date
to the Reset Rate, which will be determined by the Remarketing Agents as the
interest rate that such Senior Notes should bear in order for the Applicable
Principal Amount of the Senior Notes to have an approximate aggregate market
value of approximately 100.25% of the Treasury Portfolio Purchase Price on the
Second Remarketing Date, provided that in the determination of such Reset Rate,
the Company shall, if applicable, limit the Reset Rate to the maximum rate, if
any, permitted by applicable law;
WHEREAS, in the event of a Failed Second Remarketing, the applicable
interest rate on the Senior Notes will be reset on the Third Remarketing Date to
the Reset Rate, which will be determined by the Remarketing Agents as the
interest rate that such Senior Notes should bear in order for the Applicable
Principal Amount of the Senior Notes to have an approximate aggregate market
value of approximately 100.25% of the Treasury Portfolio Purchase Price on the
Third Remarketing Date, provided that in the determination of such Reset Rate,
the Company shall, if applicable, limit the Reset Rate to the maximum rate, if
any, permitted by applicable law;
WHEREAS, in the event of a Failed Third Remarketing, unless a Failed
Final Remarketing occurs, the applicable interest rate on the Senior Notes will
be reset on the third Business Day immediately preceding the Purchase Contract
Settlement Date to the Reset Rate, which will be determined by the Remarketing
Agents as the interest rate that such Senior Notes should bear in order to have
an approximate aggregate market value of approximately 100.25% of the aggregate
principal amount of the Senior Notes on the Final Remarketing Date, provided
that in the determination of such Reset Rate, the Company shall, if applicable,
limit the Reset Rate to the maximum rate, if any, permitted by applicable law;
WHEREAS, in the event of a Failed Final Remarketing, the applicable
rate on the Senior Notes will be reset on the Final Remarketing Date to a Reset
Rate equal to the sum of the applicable Reset Spread and the rate of interest on
the Two-Year Benchmark Treasury in effect on the Final Remarketing Date,
provided that in the determination of such Reset Rate, the Company shall, if
applicable, limit the Reset Rate to the maximum rate, if any, permitted by
applicable law;
WHEREAS, the Company has requested Banc of America Securities LLC, X.X.
Xxxxxx Securities Inc. and Wachovia Capital Markets, LLC to act as its reset
agents and remarketing agents, and as such to perform the services described
herein; and
WHEREAS, Banc of America Securities LLC, X.X. Xxxxxx Securities Inc.
and Wachovia Capital Markets, LLC are willing to act as the Company's reset
agents and remarketing agents and as such to perform such duties on the terms
and conditions expressly set forth herein;
NOW, THEREFORE, for and in consideration of the covenants made, and
subject to the conditions herein set forth, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used and not defined in
this Agreement or the preamble or recitals hereto shall have the meanings
assigned to them in the Purchase Contract Agreement or, if not therein defined,
the Pledge Agreement.
Section 2. Appointment and Obligations of Remarketing Agents. (a) The
Company hereby appoints Banc of America Securities LLC, X.X. Xxxxxx Securities
Inc. and Wachovia Capital Markets, LLC, and Banc of America Securities LLC, X.X.
Xxxxxx Securities Inc. and Wachovia Capital Markets, LLC hereby accept such
appointment, as (i) the reset agents to determine in consultation with the
Company, in the manner provided for herein and in the First Supplemental
Indenture with respect to the Senior Notes, (1) the Reset Rate that, in the
opinion of the Remarketing Agents, will, when applied to the Senior Notes,
enable the Applicable Principal Amount of the Senior Notes to have an
approximate aggregate market value of approximately 100.25% of the Treasury
Portfolio Purchase Price as of the Initial Remarketing Date, (2) in the event of
a Failed Initial Remarketing, the Reset Rate that, in the opinion of the
Remarketing Agents, will, when applied to the Senior Notes, enable the
Applicable Principal Amount of the Senior Notes to have an approximate aggregate
market value of approximately 100.25% of the Treasury Portfolio Purchase Price
as of the Second Remarketing Date, (3) in the event of a Failed Second
Remarketing, the Reset Rate that, in the opinion of the Remarketing Agents,
will, when applied to the Senior Notes, enable the Applicable Principal Amount
of the Senior Notes to have an approximate aggregate market value of
approximately 100.25% of the Treasury Portfolio Purchase Price as of the Third
Remarketing Date, (4) in the event of a Failed Third Remarketing, unless a
Failed Final Remarketing occurs, the Reset Rate that, in the opinion of the
Remarketing Agents, will, when applied to the Senior Notes, enable the Senior
Notes to have an approximate aggregate market value of approximately 100.25% of
the aggregate principal amount of the Senior Notes as of the Purchase Contract
Settlement Date, and (5) in the event of a Failed Final Remarketing, the Reset
Rate that will be equal to the sum of the applicable Reset Spread and the rate
of interest on the Two-Year Benchmark Treasury in effect on the Final
Remarketing Date, provided, in each case, that the Company, by notice to the
Remarketing Agents prior to the tenth Business Day preceding February 15, 2005,
in the case of the Initial Remarketing, March 15, 2005, in the case of the
Second Remarketing, April 15, 2005, in the case of the Third Remarketing, or the
Purchase Contract Settlement Date, in the case of the Final Remarketing, shall,
if applicable, limit the Reset Rate to the maximum rate, if any, permitted by
applicable law and (ii) the exclusive remarketing agents (subject to the right
of Banc of America Securities LLC, X.X. Xxxxxx Securities Inc. and Wachovia
Capital Markets, LLC to appoint additional Remarketing Agents hereunder as
described below) to (1) remarket the Senior Notes beneficially owned by
Corporate Unit Holders and Participating Note Holders on the Initial Remarketing
Date, for settlement on February 15, 2005, (2) in the case of a Failed Initial
Remarketing, remarket the Senior Notes beneficially owned by Corporate Unit
Holders and Participating Note Holders on the Second Remarketing Date, for
settlement on March 15, 2005, (3) in the case of a Failed Second Remarketing,
remarket the Senior Notes beneficially owned by Corporate Unit Holders and
Participating Note Holders on the Third Remarketing Date, for settlement on
April 15, 2005 and (4) in the case of a Failed Third Remarketing, remarket the
Senior Notes beneficially owned by Participating Note Holders and Senior Notes
beneficially owned by Corporate Unit Holders who have not early settled the
related Purchase Contracts and have failed to notify the Purchase Contract
Agent, on or prior to the fifth Business Day immediately preceding the Purchase
Contract Settlement Date, of their intention to settle the related Purchase
Contracts through Cash Settlement on the fourth Business Day immediately
preceding the Purchase Contract Settlement Date (or have so notified the
Purchase Contract Agent, but have not paid the Purchase Price on or prior to the
fourth Business Day immediately preceding the Purchase Contract Settlement
Date). In connection with the remarketing contemplated hereby, the Remarketing
Agents will enter into a Supplemental (the "Supplemental
") with the Company and the Purchase Contract Agent, which
shall either be (i) substantially in the form attached hereto as Exhibit A (with
such changes as the Company and the Remarketing Agents may agree upon, it being
understood that changes may be necessary in the provisions of the Supplemental
due to changes in law or facts and circumstances, and with
such further changes therein as the Remarketing Agents may reasonably request),
or (ii) in such other form as the Remarketing Agents may reasonably request,
subject to the approval of the Company (such approval not to be unreasonably
withheld). Anything herein to the contrary notwithstanding, to the extent that
the parties hereto are unable to agree on the form or substance of the
Supplemental , Banc of America Securities LLC, X.X. Xxxxxx
Securities Inc. and Wachovia Capital Markets, LLC shall not act as Remarketing
Agents hereunder. The Company agrees that Banc of America Securities LLC, X.X.
Xxxxxx Securities Inc. and Wachovia Capital Markets, LLC shall have the right,
on 15 Business Days' notice to the Company, to appoint one or more additional
Remarketing Agents so long as any such additional Remarketing Agents shall be
reasonably acceptable to the Company. Upon any such appointment, the parties
shall enter into an appropriate amendment to this Agreement to reflect the
addition of any such Remarketing Agents.
(b) Pursuant to the Supplemental , the
Remarketing Agents, either as sole Remarketing Agents or as representatives of a
group of Remarketing Agents appointed as aforesaid, will agree, subject to the
terms and conditions set forth herein and therein, to use their reasonable
efforts to (i) remarket, on the Initial Remarketing Date, the Senior Notes that
the Purchase Contract Agent and the Custodial Agent shall have notified the
Remarketing Agents have been tendered for, or otherwise are to be included in,
the Initial Remarketing, at a price per Senior Note such that the aggregate
price for the Applicable Principal Amount of the Senior Notes is approximately
100.25% of the Treasury Portfolio Purchase Price, (ii) in the event of a Failed
Initial Remarketing, remarket, on the Second Remarketing Date, the Senior Notes
that the Purchase Contract Agent and the Custodial Agent shall have notified the
Remarketing Agents have been tendered for, or otherwise are to be included in,
the Second Remarketing, at a price per Senior Note such that the aggregate price
for the Applicable Principal Amount of the Senior Notes is approximately 100.25%
of the Treasury Portfolio Purchase Price, (iii) in the event of a Failed Second
Remarketing, remarket, on the Third Remarketing Date, the Senior Notes that the
Purchase Contract Agent and the Custodial Agent shall have notified the
Remarketing Agents have been tendered for, or otherwise are to be included in,
the Third Remarketing, at a price per Senior Note such that the aggregate price
for the Applicable Principal Amount of the Senior Notes is approximately 100.25%
of the Treasury Portfolio Purchase Price, and (iv) in the event of a Failed
Third Remarketing, remarket, on the Final Remarketing Date, the Senior Notes
that the Purchase Contract Agent and the Custodial Agent shall have notified the
Remarketing Agents have been tendered for, or otherwise are to be included in,
the Final Remarketing, at a price per Senior Note such that the aggregate price
for the applicable principal amount of the Senior Notes is approximately 100.25%
of the aggregate principal amount of such Senior Notes. Notwithstanding the
preceding sentence, the Remarketing Agents shall not remarket any Senior Notes
for a price less than the price (the "Minimum Remarketing Price") necessary for
the Applicable Principal Amount of the Senior Notes to have an aggregate price
equal to 100% of the Treasury Portfolio Purchase Price, in the case of the
Initial Remarketing, the Second Remarketing or the Third Remarketing, or 100% of
the aggregate principal amount of such Senior Notes, in the case of the Final
Remarketing. After deducting the fee specified in Section 3 below, the proceeds
of such Initial Remarketing, Second Remarketing, Third Remarketing or Final
Remarketing, as the case may be, shall be paid to the Collateral Agent in
accordance with Section 4.6 or 6.3 of the Pledge Agreement and Section 5.3 or
5.4 of the Purchase Contract Agreement (each of which Sections are incorporated
herein by reference).
(c) It is understood and agreed that the Remarketing Agents shall
not have any obligation whatsoever to purchase any Senior Notes, whether in the
Initial Remarketing, the Second Remarketing, the Third Remarketing or the Final
Remarketing or otherwise, and shall in no way be obligated to provide funds to
make payment upon tender of Senior Notes for remarketing or to otherwise expend
or risk their own funds or incur or be exposed to financial liability in the
performance of their respective duties under this Agreement or the Supplemental
, and, without limitation of the foregoing, the Remarketing
Agents shall not be deemed underwriters of the remarketed Senior Notes. The
Company shall not be obligated in any case to provide funds to make payment upon
tender of Senior Notes for remarketing.
(d) The Remarketing Agents agree to give the notices required by
Sections 3.01(g) and (h), 3.02(g) and (h), 3.03(g) and (h) and 3.04(h) and
(i) of the First Supplemental Indenture.
Section 3. Fees. In the event of a Successful Initial Remarketing,
Successful Second Remarketing or Successful Third Remarketing, the Remarketing
Agents shall retain as a fee for their reset and remarketing services hereunder
and under the Supplemental (the "Remarketing Fee") an
amount not exceeding 25 basis points (0.25%) of the Treasury Portfolio Purchase
Price from any amount received in connection with such Initial Remarketing,
Second Remarketing or Third Remarketing in excess of the Minimum Remarketing
Price. In the event of a Successful Final Remarketing, the Remarketing Agents
shall retain as the Remarketing Fee an amount not exceeding 25 basis points
(0.25%) of the principal amount of the remarketed Senior Notes from any amount
received in connection with such Final Remarketing in excess of the aggregate
principal amount of such remarketed Senior Notes. Unless otherwise agreed by the
parties hereto, the Company shall pay (i) all other costs and expenses incident
to the performance of the obligations of the Company hereunder and under the
Supplemental and (ii) the out-of-pocket expenses of the
Remarketing Agents incurred in connection with acting as Remarketing Agents
hereunder and under the Supplemental Remarketing Agreement (including reasonable
fees and expenses of counsel).
Section 4. Replacement and Resignation of Remarketing Agents. (a) The
Company may at any time in its absolute discretion replace Banc of America
Securities LLC, X.X. Xxxxxx Securities Inc. or Wachovia Capital Markets, LLC as
a reset agent and remarketing agent hereunder on ten Business Days' prior
written notice to Banc of America Securities LLC, X.X. Xxxxxx Securities Inc. or
Wachovia Capital Markets, LLC, as applicable. Any such replacement shall become
effective upon the expiration of such ten Business Days. Upon providing such
notice, the Company shall use all reasonable efforts to appoint a successor
remarketing agent and reset agent and to enter into a remarketing agreement with
such successor as soon as reasonably practicable following such notice,
provided, however, that the Company shall be under no such obligation to appoint
a successor remarketing agent or reset agent if there is one or more remarketing
agents or reset agents currently in place.
(b) Banc of America Securities LLC, X.X. Xxxxxx Securities Inc. or
Wachovia Capital Markets, LLC may resign at any time and be discharged from its
respective duties and obligations hereunder as the reset agent, the remarketing
agent, or both, on ten Business Days' prior written notice to the Company. Any
such resignation shall become effective upon the expiration of such ten Business
Days. Upon receiving notice from any Remarketing Agent that it wishes to resign
hereunder, the Company shall use all reasonable efforts to appoint a successor
remarketing agent or reset agent, as applicable, and enter into a remarketing
agreement with such successor as soon as reasonably practicable following such
notice, provided, however, that the Company shall be under no such obligation to
appoint a successor remarketing agent or reset agent if there is one or more
remarketing agents or reset agents currently in place.
(c) The Company shall give the Purchase Contract Agent, the
Indenture Trustee, the Collateral Agent and the Custodial Agent prompt written
notice of the appointment of any successor remarketing agent.
Section 5. Dealing in the Securities. Each Remarketing Agent, when
acting hereunder or under the Supplemental Remarketing Agreement or when acting
in its individual or any other capacity, may, to the extent permitted by law,
buy, sell, hold or deal in any of the Senior Notes, Treasury Units, Corporate
Units or any other securities of the Company. With respect to any Senior Notes,
Treasury Units, Corporate Units or any other securities of the Company owned by
it, such Remarketing Agent may exercise any vote or join in any action with like
effect as if it did not act in any capacity hereunder. Each Remarketing Agent,
in its individual 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. The Company may, to the
extent permitted by law, purchase any Senior Notes that are remarketed by any
Remarketing Agent.
Section 6. Representations and Warranties. The Company represents and
warrants to the Remarketing Agents as follows:
(a) The Company meets the requirements for use of Form S-3. A
registration statement on Form S-3 (Registration No. 333-84276), including a
prospectus relating to the Senior Notes (including the documents incorporated by
reference therein, the "Registration Statement") has been (i) prepared by the
Company under the provisions of the Securities Act of 1933, as amended (the
"1933 Act"), and the rules and regulations thereunder of the Securities and
Exchange Commission (the "Commission"); (ii) filed with the Commission; and
(iii) declared effective by the Commission. In connection with the Initial
Remarketing, Second Remarketing, in the event of a Failed Initial Remarketing,
or Third Remarketing, in the event of a Failed Second Remarketing, if, and to
the extent required in the opinion of counsel (which need not be a formal
written opinion) for the Remarketing Agents or the Company by applicable law,
regulations or interpretations in effect at the time of such Initial
Remarketing, Second Remarketing or Third Remarketing, as the case may be, the
Company (A) if reasonably requested by the Remarketing Agents, shall furnish a
current prospectus and a current preliminary prospectus supplement or
preliminary pricing supplement relating to the Senior Notes to be used by the
Remarketing Agents in the Initial Remarketing, in the Second Remarketing or in
the Third Remarketing, as applicable, in each case at such time and in such
quantities as the Remarketing Agents may reasonably request, and shall pay all
expenses relating thereto, and (B) shall furnish a current final prospectus and
a final prospectus supplement or final pricing supplement relating to the Senior
Notes to be used by the Remarketing Agents in the Initial Remarketing, in the
Second Remarketing or in the Third Remarketing, as applicable, in each case at
such time and in such quantities as the Remarketing Agents may reasonably
request, and shall pay all expenses relating thereto. In the event of a Failed
Third Remarketing and in connection with the Final Remarketing, if and to the
extent required in the opinion of counsel (which need not be a formal written
opinion) for the Remarketing Agents or the Company by applicable law,
regulations or interpretations in effect at the time of such Final Remarketing,
the Company (A) if reasonably requested by the Remarketing Agents, shall furnish
a current prospectus and a current preliminary prospectus supplement or
preliminary pricing supplement relating to the Senior Notes to be used by the
Remarketing Agents in the Final Remarketing at such time and in such quantities
as the Remarketing Agents may reasonably request, and shall pay all expenses
related thereto, and (B) shall furnish a current final prospectus and a final
prospectus supplement or final pricing supplement relating to the Senior Notes
to be used by the Remarketing Agents in the Final Remarketing at such time and
in such quantities as the Remarketing Agents may reasonably request, and shall
pay all expenses relating thereto. The Company shall also take all such actions
as may (upon advice of counsel to the Company and the Remarketing Agents) be
necessary or desirable under state securities or blue sky laws in connection
with the Initial Remarketing, Second Remarketing, Third Remarketing or Final
Remarketing, as applicable. All references in this Agreement to amendments or
supplements to the Registration Statement, the prospectus, the preliminary
prospectus or pricing supplement or the final prospectus or pricing supplement
shall be deemed to mean and include the filing of any document under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), which is
incorporated or deemed to be incorporated by reference in the Registration
Statement, the prospectus, the preliminary prospectus or pricing supplement or
the final prospectus or pricing supplement, as the case may be.
(b) This Agreement has been duly authorized, executed and delivered
by the Company and, when duly executed and delivered by the Remarketing Agents,
will constitute a valid and binding agreement of the Company and will be
enforceable against the Company in accordance with the terms hereof, except (i)
that such enforcement may be subject to bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws, now or hereafter in
effect, relating to creditors' rights generally, (ii) that the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought and (iii) rights to indemnity and
contribution hereunder may be limited by applicable laws relating to securities
or the policies underlying such laws.
(c) The Company is, to its knowledge, in compliance in all material
respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 that
are effective and the rules and regulations of the Commission that have been
adopted and are effective thereunder.
Section 7. Conditions to the Remarketing Agents' Obligations. (a) The
obligations of the Remarketing Agents under this Agreement and the Supplemental
Remarketing Agreement shall be subject to the terms and conditions of this
Agreement and the Supplemental Remarketing Agreement, including, without
limitation, the following conditions: (i) the Senior Notes tendered for, or
otherwise to be included in, the Initial Remarketing, Second Remarketing, Third
Remarketing or Final Remarketing, as the case may be, have not been called for
redemption, (ii) the Remarketing Agents are able to find a purchaser or
purchasers for tendered Senior Notes (1) in the case of the Initial Remarketing,
Second Remarketing or Third Remarketing, at a price not less than the Minimum
Remarketing Price, and (2) in the case of the Final Remarketing, at a price not
less than 100% of the principal amount of the Senior Notes, (iii) the Purchase
Contract Agent, the Collateral Agent, the Custodial Agent, the Company and the
Trustee shall have performed their respective obligations in connection with the
Initial Remarketing, the Second Remarketing, in the event of a Failed Initial
Remarketing, the Third Remarketing, in the event of a Failed Second Remarketing,
and the Final Remarketing, in the event of a Failed Third Remarketing, in each
case pursuant to the Purchase Contract Agreement, the Pledge Agreement, the
Indenture, this Agreement and the Supplemental Remarketing Agreement (including,
without limitation, giving the Remarketing Agents notice of the aggregate
principal amount, as the case may be, of Senior Notes to be remarketed, no later
than 11:00 a.m., New York City time, on the fourth Business Day prior to the
Purchase Contract Settlement Date, in the case of the Final Remarketing, and, in
each case, concurrently delivering the Senior Notes to be remarketed to the
Remarketing Agents), (iv) no Event of Default (as defined in the Indenture) with
respect to the Senior Notes shall have occurred and be continuing, (v) the
accuracy of the representations and warranties of the Company included and
incorporated by reference in this Agreement and the Supplemental Remarketing
Agreement or in certificates of any officer of the Company or any of its
subsidiaries delivered pursuant to the provisions included or incorporated by
reference in this Agreement or the Supplemental Remarketing Agreement, (vi) the
performance by the Company of its covenants and other obligations included and
incorporated by reference in this Agreement and the Supplemental Remarketing
Agreement, and (vii) the satisfaction of the other conditions set forth and
incorporated by reference in this Agreement and the Supplemental Remarketing
Agreement.
(b) If at any time during the term of this Agreement, any Event of
Default (as defined in the Indenture) has occurred and is continuing under the
Indenture, then the obligations and duties of the Remarketing Agents under this
Agreement and the Supplemental Remarketing Agreement shall be suspended until
such default has been cured. The Company will promptly give the Remarketing
Agents notice of all Events of Default of which any officer of the Company with
responsibility relating thereto is aware.
Section 8. Termination of Remarketing Agreement. This Agreement shall
terminate as to any Remarketing Agent that is replaced on the effective date of
its replacement pursuant to Section 4(a) hereof or pursuant to Section 4(b)
hereof. Notwithstanding any such termination under Section 4(a), the obligations
set forth in Section 3 hereof shall survive and remain in full force and effect
until all amounts payable under said Section 3 have been paid in full.
Section 9. Remarketing Agents' Performance; Duty of Care. The duties
and obligations of the Remarketing Agents shall be determined solely by the
express provisions of this Agreement and the Supplemental Remarketing Agreement.
No implied covenants or obligations of or against the Remarketing Agents shall
be read into this Agreement or the Supplemental Remarketing Agreement. In the
absence of bad faith, willful misconduct or gross negligence on the part of the
Remarketing Agents, the Remarketing Agents may conclusively rely upon any
document furnished to them that purports to conform to the requirements of this
Agreement or the Supplemental Remarketing Agreement, as the case may be, as to
the truth of the statements expressed therein. The Remarketing Agents shall be
protected in acting upon any document or communication reasonably believed by it
to be signed, presented or made by the proper party or parties. The Remarketing
Agents shall not have any obligation to determine whether there is any
limitation under applicable law on the Reset Rate on the Senior Notes or, if
there is any such limitation, the maximum permissible Reset Rate on the Senior
Notes, and they shall rely solely upon written notice from the Company (which
the Company agrees to provide prior to the tenth Business Day before February
15, 2005, in the case of the Initial Remarketing, prior to the tenth Business
Day before March 15, 2005, in the case of the Second Remarketing, prior to the
tenth Business Day before April 15, 2005, in the case of the Third Remarketing,
and prior to the tenth Business Day before the Purchase Contract Settlement
Date, in the case of the Final Remarketing) as to whether or not there is any
such limitation and, if so, the maximum permissible Reset Rate. The Remarketing
Agents shall not incur any liability under this Agreement or the Supplemental
Remarketing Agreement to any beneficial owner or holder of Senior Notes, or
other securities, either in its individual capacity or as Remarketing Agents for
any action or failure to act in connection with the remarketing or otherwise in
connection with the transactions contemplated by this Agreement or the
Supplemental Remarketing Agreement. The provisions of this Section 9 shall
survive any termination of this Agreement and shall also continue to apply to
every Remarketing Agent hereunder notwithstanding their resignation or removal.
Section 10. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless the Remarketing Agents and their respective
directors, officers, employees, agents, affiliates and each person, if any, who
controls the Remarketing Agents within the meaning of either Section 15 of the
1933 Act or Section 20 of 1934 Act, as discussed below, provided that any such
indemnification shall be payable only in connection with any losses, claims,
damages, liabilities or expenses which have been incurred or suffered by the
relevant indemnified party in connection with any Remarketing Agent performing
its obligations and responsibilities hereunder and any acts incidental thereto:
(i) from and against any and all losses, claims, damages,
liabilities and expenses whatsoever, joint or several, as
incurred, to which such indemnified party may become subject
under any applicable federal or state law, or otherwise, and
related to, arising out of, or based on (A) any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereto, or the omission
or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or (B) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary
prospectus or pricing supplement or final prospectus or pricing
supplement relating to the Senior Notes or any amendment or
supplement thereto, or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or (C) any untrue statement or alleged
untrue statement of a material fact contained in any other
written information or documents (including, without limitation,
any documents incorporated or deemed to be incorporated by
reference in any such information or documents), if any, provided
by the Company specifically for use in connection with the
remarketing of the Senior Notes or any of the transactions
related thereto, or (D) any breach by the Company of any of the
representations or warranties included or incorporated by
reference in this Agreement or the Supplemental Remarketing
Agreement, or (E) any failure by the Company to initiate or
consummate the remarketing of the Senior Notes (including,
without limitation, any Failed Initial Remarketing, Failed Second
Remarketing, Failed Third Remarketing or Failed Final
Remarketing) or the withdrawal, rescission, termination,
amendment or extension of the terms of such remarketing, or (F)
any failure on the part of the Company to comply with, or any
breach by the Company of, any of the provisions included or
incorporated by reference in this Agreement, the Supplemental
Remarketing Agreement, the Purchase Contract Agreement, the
Corporate Units, the Treasury Units, the Pledge Agreement, the
Indenture or the Senior Notes (collectively, the "Operative
Documents"), or (G) the remarketing of the Senior Notes or any
other transaction contemplated by any of the Operative Documents,
or the engagement of the Remarketing Agents pursuant to, or the
performance by the Remarketing Agents of the services
contemplated by, this Agreement or the Supplemental Remarketing
Agreement, whether or not the Initial Remarketing, the Second
Remarketing, the Third Remarketing or the Final Remarketing or
the reset of the interest rate on the Senior Notes as
contemplated herein actually occur;
(ii) from and against any and all losses, claims, damages,
liabilities and expenses whatsoever, to the extent of the
aggregate amount paid in settlement of any litigation,
commenced or threatened, based upon, or any claim whatsoever
related to, any of the foregoing described in clause (i) above
if such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, reasonably
incurred in investigating, preparing or defending against any
litigation, commenced or threatened, based upon, or of any claim
whatsoever related to, any of the foregoing described in
clause (i) above, to the extent that any such expense is not
paid under clause (i) or (ii) above.
; provided, however, that the Company will not be liable under Sections
10(a)(i)(E), 10(a)(i)(F) or 10(a)(i)(G) to any indemnified party to the extent
that any losses are finally judicially determined to have resulted from such
indemnified party's bad faith, gross negligence or willful misconduct; provided,
further, that this Section 10(a), as such section relates to the Registration
Statement (or any amendment thereto) or any preliminary prospectus supplement or
preliminary pricing supplement or final prospectus supplement or final pricing
supplement (or any amendment or supplement thereto) shall not apply to any such
losses, claims, damages, liabilities or expenses arising out of, or based upon,
statements or omissions made in the Registration Statement (or any amendment
thereto) or any preliminary prospectus supplement or preliminary pricing
supplement or final prospectus supplement or final pricing supplement (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by the Remarketing Agents in writing
expressly for use in the Registration Statement (or any amendment thereto), such
preliminary prospectus supplement or preliminary pricing supplement, or such
final prospectus supplement or final pricing supplement (or any amendment or
supplement thereto); and provided, further, that this Section 10(a), as such
section relates to any preliminary prospectus, preliminary prospectus supplement
or preliminary pricing supplement, shall not apply on account of any such
losses, claims, damages, liabilities or expenses arising from, or based upon,
the remarketing of the Senior Notes to any person if a copy of any final
prospectus, final prospectus supplement or final pricing supplement was timely
made available by the Company to the Remarketing Agents and was not sent or
given by or on behalf of the Remarketing Agents to such person, if required by
law to have been so delivered, at or prior to the written confirmation of the
sale of such Senior Notes to such person, and if such final prospectus, final
prospectus supplement or final pricing supplement would have cured the defect
giving rise to such losses, claims, damages, liabilities and expenses.
(b) The Remarketing Agents agree that, severally and not jointly,
they will indemnify and hold harmless the Company, its directors and each of the
officers of the Company who signed the Registration Statement 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 to the same extent as the indemnity contained
in subsection (a) of this Section 10, but only with respect to statements or
omissions made in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or pricing supplement or final prospectus or pricing
supplement (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by the Remarketing
Agents in writing expressly for use in the Registration Statement (or any
amendment thereto), such preliminary prospectus or pricing supplement, or such
final prospectus or pricing supplement (or any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation unless (i) the Company and such
indemnified party shall have mutually agreed to the employment of such counsel,
or (ii) the named parties to any such action (including any impleaded parties)
include both such indemnified party and the Company and such indemnified party
shall have been advised by such counsel that a conflict of interest between the
Company and such indemnified party may arise and for this reason it is not
desirable for the same counsel to represent both the indemnifying party and also
the indemnified party (it being understood, however, that the Company shall not,
in connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys for all such indemnified parties), in
which case the fees and expenses of such counsel shall be at the expense of the
Company. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include any acknowledgement or 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 10 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages,
liabilities or expenses whatsoever (or actions in respect thereof), then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses (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
Remarketing Agents on the other from the remarketing of the Senior Notes. 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 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 Remarketing Agents on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Remarketing Agents on the other
shall be deemed to be in the same respective proportions as the compensation
received by the Remarketing Agents under this Agreement bear to the aggregate
principal amount of the Senior Notes. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or the
Remarketing Agents on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Remarketing Agents agree that it would not be just
and equitable if contributions pursuant to this Section 10(d) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 10(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 Section 10(d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 10(d), the Remarketing Agents shall not be required to contribute any
amount in excess of the amount by which the total compensation received by the
Remarketing Agents under this Agreement exceeds the amount of any damages which
the Remarketing Agent has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Remarketing
Agents under this Section 10 shall be several and not joint.
(e) Anything herein or in the Supplemental Remarketing Agreement to
the contrary notwithstanding, the provisions of this Section 10, and the rights
of the Remarketing Agents and the other indemnified parties hereunder, shall be
in addition to, and not in limitation of, any rights or benefits (including,
without limitation, rights to indemnification or contribution) which the
Remarketing Agents or any other indemnified party may have under any other
instrument or agreement. The provisions of this Section 10 shall survive any
termination of this Agreement and shall continue to apply to the Remarketing
Agents and every Remarketing Agent hereunder notwithstanding their resignation
or removal.
Section 11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
conflict of law principles thereunder.
Section 12. Term of Agreement. (a) Unless otherwise terminated in
accordance with the provisions hereof and except as otherwise provided herein,
this Agreement shall remain in full force and effect from the date hereof until
the first Business Day thereafter on which no Senior Notes are outstanding, or,
if earlier, the Business Day immediately following February 15, 2005, in the
case of a Successful Initial Remarketing, the Business Day immediately following
March 15, 2005, in the case of a Successful Second Remarketing, the Business Day
immediately following April 15, 2005, in the case of a Successful Third
Remarketing, or the Business Day immediately following the Purchase Contract
Settlement Date. Anything herein to the contrary notwithstanding, the provisions
of Sections 3, 9, 10 and 12(b) hereof shall survive any termination of this
Agreement and remain in full force and effect.
(b) All representations and warranties included or incorporated by
reference in this Agreement, or the Supplemental Remarketing Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto
or thereto, shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of the Remarketing Agents or any of its
controlling persons, or by or on behalf of the Company or the Purchase Contract
Agent, and shall survive the remarketing of the Senior Notes.
Section 13. Successors and Assigns. The rights and obligations of
the Company and the Purchase Contract Agent (both in its capacity as Purchase
Contract Agent and as attorney-in-fact) hereunder may not be assigned or
delegated to any other person without the prior written consent of the
Remarketing Agents, except, with respect to the Purchase Contract Agent, in
connection with the appointment of a successor thereto pursuant to the Purchase
Contract Agreement. The rights and obligations of the Remarketing Agents
hereunder may not be assigned or delegated to any other person without the prior
written consent of the Company, except that the Remarketing Agents shall have
the right to appoint additional Remarketing Agents as provided herein. This
Agreement shall inure to the benefit of and be binding upon the Company, the
Purchase Contract Agent and the Remarketing Agents and their respective
successors and permitted assigns and the other indemnified parties (as defined
in Section 10 hereof) and the successors, permitted assigns, heirs and legal
representatives of the indemnified parties. The terms "successors" and "assigns"
shall not include any purchaser of Securities or Senior Notes merely because of
such purchase. The obligations of the Remarketing Agents under this Agreement
are several and not joint.
Section 14. 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 provision of this Agreement.
Section 15. 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 provisions of any constitution, statute, rule or public
policy or for any other reason, then, to the extent permitted by law, such
circumstances shall not have the effect of rendering the provision in question
invalid, inoperative or unenforceable in any other case, circumstances or
jurisdiction, or of rendering any other provision or provisions of this
Agreement invalid, inoperative or unenforceable to any extent whatsoever.
Section 16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
Section 17. Amendments. This Agreement or the Supplemental Remarketing
Agreement may be amended by any instrument in writing signed by the parties
hereto or thereto. The Company and the Purchase Contract Agent agree that they
will not enter into, cause or permit any amendment or modification of the
Purchase Contract Agreement, the Pledge Agreement, the Securities or any other
instruments or agreements relating to the Securities which would materially and
adversely affect the rights, duties or obligations of the Remarketing Agents
without the prior written consent of the Remarketing Agents. The parties agree
that without the Remarketing Agents' prior written consent the Company shall not
amend the First Supplemental Indenture or the Senior Notes if such amendment
would materially and adversely affect the rights or obligations of the
Remarketing Agents or change the remarketing procedures applicable to the Senior
Notes.
Section 18. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication, including telephone or telecopy, and confirmed in writing.
All written notices and confirmations of notices by telecommunication shall be
deemed to have been validly given or made when delivered or mailed, registered
or certified mail, return receipt requested and postage prepaid. All such
notices, requests, consents or other communications shall be addressed as
follows:
if to the Company, to:
000 XxxxxxxXxx Xxxxx
Xxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: 318-388-9000
with a copy to:
Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, LLP
000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: 000-000-0000
if to the Remarketing Agents, to:
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: High Grade Debt Capital Markets Transaction Management
Facsimile: 212-583-8000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: High Grade Syndicate Desk - 8th Floor
Facsimile: 000-000-0000
Wachovia Securities, Inc.
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: High Grade Syndicate Desk - 7th Floor
Facsimile: 000-000-0000
with a copy to:
Pillsbury Winthrop LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: 000-000-0000
and if to the Purchase Contract Agent, to:
Wachovia Bank, National Association
0000 Xxxx Xxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx
Facsimile: 000-000-0000
or to such other address as any of the above shall specify to the other in
writing.
Section 19. Information. The Company agrees to furnish the Remarketing
Agents with such information and documents as the Remarketing Agents may
reasonably request in connection with the transactions contemplated by this
Remarketing Agreement and the Supplemental Remarketing Agreement, and make
reasonably available to the Remarketing Agents and any accountant, attorney or
other advisor retained by the Remarketing Agents such information that parties
would customarily require in connection with a due diligence investigation
conducted in accordance with applicable securities laws and cause the Company's
officers, directors, employees and accountants to participate in all such
discussions and to supply all such information reasonably requested by any such
person in connection with such investigation.
IN WITNESS WHEREOF, each of the Company, the Purchase Contract Agent
and the Remarketing Agents has caused this Agreement to be executed in its name
and on its behalf by one of its duly authorized signatories as of the date first
above written.
CENTURYTEL, INC.
By: /s/ R. Xxxxxxx Xxxxx, Xx.
------------------------------
R. Xxxxxxx Xxxxx, Xx.
Executive Vice President &
Chief Financial Officer
CONFIRMED AND ACCEPTED:
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Principal
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
WACHOVIA CAPITAL MARKETS, LLC
By: /s/ Xxx Xxxxxxx
--------------------------------
Name: Xxx Xxxxxxx
Title: Managing Director
WACHOVIA BANK, NATIONAL ASSOCIATION,
not individually but solely as Purchase
Contract Agent and as attorney-in-fact for
the holders of the Purchase Contracts
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
Exhibit A
to Remarketing Agreement
FORM OF SUPPLEMENTAL REMARKETING AGREEMENT
Supplemental Remarketing Agreement dated as of February 2, 2005 among
CenturyTel, Inc., a Louisiana corporation (the "Company"), Wachovia Bank,
National Association, a national banking association organized and existing
under the laws of the United States, as Purchase Contract Agent and
attorney-in-fact for the Holders of the Purchase Contracts (as such terms are
defined in the Purchase Contract Agreement referred to in Schedule I hereto),
and Banc of America Securities LLC, X.X. Xxxxxx Securities Inc. and Wachovia
Capital Markets, LLC, as remarketing agents and reset agents (the "Remarketing
Agents").
NOW, THEREFORE, for and in consideration of the covenants herein made
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Remarketing Agreement
dated as of the date hereof (the "Remarketing Agreement") among the Company, the
Purchase Contract Agent and Banc of America Securities LLC, X.X. Xxxxxx
Securities Inc. and Wachovia Capital Markets, LLC or, if not defined in the
Remarketing Agreement, the meanings assigned to them in the Purchase Contract
Agreement or, if not therein defined, the Pledge Agreement.
2. Registration Statement and Prospectus. The Company represents
and warrants to the Remarketing Agents as follows: The Company meets the
requirements for use of Form S-3. A registration statement on Form S-3
(Registration No. 333-84276), including a prospectus relating to the Securities
(as such term is defined on Schedule I hereto) has been (i) prepared by the
Company under the provisions of the Securities Act of 1933, as amended (the
"1933 Act"), and the rules and regulations thereunder of the Securities and
Exchange Commission (the "Commission"); (ii) filed with the Commission; and
(iii) declared effective by the Commission. Such Registration Statement, as
amended, as of the date hereof, the Initial Remarketing Date, the Second
Remarketing Date, the Third Remarketing Date or the Final Remarketing Date, as
the case may be, and the documents incorporated or deemed to be incorporated by
reference therein as of the Initial Remarketing Date, the Second Remarketing
Date, the Third Remarketing Date or the Final Remarketing Date, as the case may
be, are hereinafter called, collectively, the "Registration Statement"; the
related prospectus dated April 29, 2002 and prospectus supplement dated April
30, 2002, including the documents incorporated or deemed to be incorporated by
reference therein as of the Initial Remarketing Date, the Second Remarketing
Date, the Third Remarketing Date or the Final Remarketing Date, as the case may
be, and the preliminary pricing supplement relating to the Securities are
hereinafter called, collectively, the "preliminary prospectus" and the related
prospectus dated April 29, 2002 and prospectus dated April 30, 2002, including
the documents incorporated or deemed to be incorporated by reference therein as
of the date hereof, the Initial Remarketing Date, the Second Remarketing Date,
the Third Remarketing Date or the Final Remarketing Date, as the case may be,
and the final pricing supplement relating to the Securities to be dated the
Initial Remarketing Date, the Second Remarketing Date, the Third Remarketing
Date or the Final Remarketing Date, as they case may be, are hereinafter called,
collectively, the "Prospectus." The Company has or will provide copies of the
Registration Statement, the preliminary prospectus and the Prospectus to the
Remarketing Agents, and hereby consents to the use of the preliminary prospectus
and the Prospectus in connection with the remarketing of the Securities. All
references in this Agreement to amendments or supplements to the Registration
Statement, the preliminary prospectus or the Prospectus shall be deemed to mean
and include the filing of any document under the Securities Exchange Act of
1934, as amended (the "1934 Act"), after the Initial Remarketing Date, the
Second Remarketing Date, the Third Remarketing Date or the Final Remarketing
Date, as the case may be, which is incorporated or deemed to be incorporated by
reference in the Registration Statement, the preliminary prospectus or the
Prospectus, as the case may be.
3. Provisions Incorporated by Reference. (a) Subject to Section
3(b) hereof, the provisions of the Underwriting Agreement referred to in
Schedule I hereto (other than all portions preceding Section 1, Section 1,
Xxxxxxx 0, Xxxxxxxx 0(x) xxx (x), Xxxxxxxx 0 (x), (x), (x), (x) and (o),
Sections 5(j), (k) and (m), Section 6, Section 7 and Section 8 thereof) are
incorporated herein by reference, mutatis mutandis, and the Company hereby makes
the representations and warranties, and agrees to comply with the covenants and
obligations, set forth in the provisions of the Underwriting Agreement
incorporated by reference herein, as modified by the provisions of Section 3(b)
hereof.
(b) With respect to the provisions of the Underwriting Agreement
incorporated herein by reference, for the purposes hereof, (i) all references
therein to the "Underwriter" or "Underwriters" shall be deemed to refer to the
Remarketing Agents and all references to the "Representative" or the
"Representatives" shall be deemed to refer to the Remarketing Agents; (ii) for
purposes of Section 5 therein, all references therein to the "Securities",
"Common Stock", "Issuable Common Stock", "Option Securities" or "Initial
Securities" shall be deemed to refer to the Securities as defined herein; (iii)
all references therein to the "Closing Date" shall be deemed to refer to the
Remarketing Closing Date specified in Schedule I hereto and all references to
"Date of Delivery" shall be disregarded; (iv) all references therein to the
"Registration Statement," the "Preliminary Prospectus", the "Final Prospectus"
or the "Prospectus" shall be deemed to refer to the Registration Statement, the
preliminary prospectus and the Prospectus, respectively, as defined herein; (v)
except as set forth in clause (ix) hereof all references therein to this
"Agreement," the "Underwriting Agreement," "hereof," "herein" and all references
of similar import, shall be deemed to mean and refer to this Supplemental
Remarketing Agreement; (vi) all references therein to "the date hereof," "the
date of this Agreement" "the Execution Date" and all similar references shall be
deemed to refer to the date of this Supplemental Remarketing Agreement; (vii)
the third sentence of Section 3(j) shall be deleted in its entirety; (viii) the
reference in Section 5(g) to "Xxxxxx X. Xxxxx" shall be replaced with a
reference to "Xxxxxx X. Xxxx"; (ix) the term "Transaction Documents" shall be
deemed to include this Agreement; (x) for purposes of Sections 5(d), (e) and (i)
therein, the references to "the date hereof" and "the Execution Date" shall be
deemed to mean "the Initial Remarketing Date, the Second Remarketing Date, the
Third Remarketing Date or the Final Remarketing Date, as the case may be"; (xi)
the term "Ancillary Agreements" shall be deemed to refer to the Remarketing
Agreement and this Agreement; (xii) Schedule II to the Underwriting Agreement
shall be replaced with Schedule II to this Agreement; (xiii) clauses (iv) and
(v) of Section 5(e) shall be revised to read as follows: "(iv) any material
adverse change in the financial markets in the United States or elsewhere; or
(v) the outbreak or escalation of hostilities or other international or national
calamity or crisis, if the effect of any such event specified in clause (iv) or
(v), in the Remarketing Agents' judgment, makes it impracticable or inadvisable
to proceed with the remarketing or the delivery of the Securities on the terms
and in the manner contemplated in the Prospectus"; (xiv) paragraph 4 of Exhibit
A to Underwriting Agreement shall be revised to add a reference to the
Remarketing Agreement; (xv) the reference to "or known to me" in the last
sentence of paragraph 4 of Exhibit A to the Underwriting Agreement shall be
disregarded; (xvi) all references to the Equity Units, the Purchase Contracts
and the Issuable Common Stock in paragraphs 2, 3, 6 and 9 of Exhibit B to the
Underwriting Agreement shall be disregarded; (xvii) paragraph 7 of Exhibit B to
Underwriting Agreement shall be replaced with the following: "The statements
under the heading "Description of Debt Securities" in the Registration Statement
and the Basic Prospectus and the headings "Description of the Senior Notes" and
"Certain United States Federal Income Tax Considerations" in the Final
Prospectus are accurate in all material respects and, insofar as such
description contains statements constituting a summary of the legal matters or
documents referred to therein, such statements fairly summarize the information
referred to therein."; and (xviii) the second sentence of the penultimate
paragraph of Exhibit B to the Underwriting Agreement shall be revised to read in
its entirety as follows: "Accordingly, whenever any statement in this letter is
qualified by the phrase "to the best of our knowledge" or "known to us" or a
phrase of similar import, such phrase is intended to mean the actual knowledge
of information by the lawyers in our firm who have been principally involved in
negotiating the subject transaction and preparing the pertinent documents and
any other lawyers in our firm having substantial responsibility for managing the
client relationship with the Company or overseeing the firm's provision of
securities law advice to the Company, but does not include the information that
might be revealed if there were to be undertaken a canvass of all lawyers in our
firm, a general search of our files, a review of all of the Company's contacts
or any other type of independent investigation."
4. Remarketing. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth or incorporated by
reference herein and in the Remarketing Agreement, the Remarketing Agents agree
to use their reasonable efforts to remarket, in the time and in the manner set
forth in Section 2(b) of the Remarketing Agreement, the aggregate principal
amount, as the case may be, of Securities set forth in Schedule I hereto at a
price of approximately 100.25% (but not less than the Minimum Remarketing Price)
of the Treasury Portfolio Purchase Price, in the case of the Initial
Remarketing, Second Remarketing, if any, and Third Remarketing, if any, or at a
price of approximately 100.25% (but not less than the Minimum Remarketing Price)
of the aggregate principal amount of the Securities in the case of the Final
Remarketing, if any. In connection therewith, the registered holder or holders
thereof agree pursuant to Section 3 of the Remarketing Agreement, in the manner
specified in Section 5 hereof, to pay to the Remarketing Agents the Remarketing
Fee, payable by deduction from any amount received in connection with such
remarketing. Pursuant to the First Supplemental Indenture, the right of each
holder of Securities to have Securities tendered for purchase shall be limited
to the extent set forth in the second to last sentence of Section 2(b) of the
Remarketing Agreement (which is incorporated by reference herein). As more fully
provided in Section 2(c) of the Remarketing Agreement (which is incorporated by
reference herein), the Remarketing Agents are not obligated to purchase any
Securities in the remarketing or otherwise, and neither the Company nor the
Remarketing Agents shall be obligated in any case to provide funds to make
payment upon tender of Securities for remarketing.
5. Delivery and Payment. (a) Delivery of payment for the remarketed
Securities by the purchasers thereof identified by the Remarketing Agents and
payment of the Remarketing Fee shall be made on the Remarketing Closing Date (or
such later date not later than five Business Days after such date as the
Remarketing Agents shall designate), which date and time may be postponed by
agreement between the Remarketing Agents and the Company, at the Closing
Location (as such term is defined on Schedule I hereto). Delivery of the
remarketed Securities and payment of the Remarketing Fee shall be made to the
Remarketing Agents against payment by the respective purchasers of the
remarketed Securities of the consideration therefor as specified herein, which
consideration pursuant to Section 4.6 or 6.3 of the Pledge Agreement and Section
5.3 or 5.4 of the Purchase Contract Agreement shall be paid to the Collateral
Agent for the account of the persons entitled thereto by certified or official
bank check or checks drawn on or by a New York Clearing House bank and payable
in immediately available funds or in immediately available funds by wire
transfer to an account or accounts designated by the Collateral Agent.
(b) The remarketed Securities shall be represented by one or more
definitive global securities in book-entry form and shall be registered in the
name of The Depository Trust Company (or its nominee), and the Company agrees to
have such certificates available for inspection, packaging and checking by the
Remarketing Agents in New York, New York not later than 1:00 p.m. on the
Business Day prior to the Remarketing Closing Date. The Remarketing Agents may
modify the settlement procedures with respect to the remarketed Securities in
order to facilitate the settlement process.
6. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication, including telephone or telecopy, and confirmed in writing.
All written notices and confirmations of notices by telecommunication shall be
deemed to have been validly given or made when delivered or mailed, by
registered or certified mail, return receipt requested and postage prepaid. All
such notices, requests, consents or other communications shall be addressed as
follows:
if to the Company, to:
000 XxxxxxxXxx Xxxxx
Xxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: 318-388-9000
with a copy to:
Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx, LLP
000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: 000-000-0000
if to the Remarketing Agents, to:
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: High Grade Debt Capital Markets Transaction Management
Facsimile: 212-583-8000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: High Grade Syndicate Desk - 8th Floor
Facsimile: 000-000-0000
Wachovia Securities, Inc.
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: High Grade Syndicate Desk - 7th Floor
Facsimile: 000-000-0000
with a copy to:
Pillsbury Winthrop LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: 000-000-0000
and if to the Purchase Contract Agent, to:
Wachovia Bank, National Association
0000 Xxxx Xxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx
Facsimile: 000-000-0000
or to such other address as any of the above shall specify to the other
in writing.
7. Conditions to Obligations of Remarketing Agents. Anything herein
to the contrary notwithstanding, the parties hereto agree that the obligations
of the Remarketing Agents under this Agreement and the Remarketing Agreement are
subject to the satisfaction of the conditions set forth in Section 7 of the
Remarketing Agreement (which are incorporated herein by reference), and to the
satisfaction, on the Initial Remarketing Date, Second Remarketing Date, Third
Remarketing Date or Final Remarketing Date, as the case may be, and the
Remarketing Closing Date of the conditions incorporated by reference herein from
Section 5 of the Underwriting Agreement (except subparagraphs (j), (k) and (m)
thereof) as modified by Section 3(b) hereof (including, without limitation, the
delivery of opinions of counsel, officers' certificates and accountants' comfort
letters on the terms and conditions therein specified, the accuracy as of the
Initial Remarketing Date, Second Remarketing Date, Third Remarketing Date or
Final Remarketing Date, as the case may be , and the Remarketing Closing Date of
the representations and warranties of the Company included and incorporated by
reference herein and the performance by the Company of its obligations under the
Remarketing Agreement and this Agreement as and when required hereby and
thereby).
8. Indemnity and Contribution. Anything herein to the contrary
notwithstanding, the Remarketing Agents shall be entitled to indemnity and
contribution on the same terms and conditions as are set forth in Section 10 of
the Remarketing Agreement (which is incorporated by reference herein except that
all references therein to this "Agreement" shall be deemed to mean and refer to
this Supplemental Remarketing Agreement and all references therein to the
"Registration Statement," the "preliminary prospectus" and the "final
prospectus" shall be deemed to mean and refer to the Registration Statement, the
preliminary prospectus and the Prospectus, respectively, as defined herein).
9. Black-Out. Until thirty (30) days from the Initial Remarketing,
Second Remarketing, in the event of a Failed Initial Remarketing, or Third
Remarketing, in the event of a Failed Second Remarketing, or Final Remarketing,
in the event of a Failed Third Remarketing, the Company will not, without the
consent of the Remarketing Agents, 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) up to $400,000,000 aggregate
principal amount of the Company's senior notes and (ii) the incurrence of
indebtedness under the Company's credit facilities or through commercial paper
issuances.
10. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without regard to conflict
of law principles thereunder.
11. 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 provision of this Agreement.
12. 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 provisions of any constitution, statute, rule or public policy or for
any other reason, then, to the extent permitted by law, such circumstances shall
not have the effect of rendering the provision in question invalid, inoperative
or unenforceable in any other case, circumstances or jurisdiction, or of
rendering any other provision or provisions of this Agreement invalid,
inoperative or unenforceable to any extent whatsoever.
13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
14. Obligations of the Remarketing Agents. All obligations of the
Remarketing Agents under this Agreement shall be several and not joint.
15. Effectiveness of the Remarketing Agreement. Except as may
otherwise be specifically set forth herein, the Remarketing Agreement shall
otherwise remain in full force and effect.
16. Survival. Anything herein to the contrary notwithstanding, the
provisions of Section 8 and this Section 16 shall survive any termination or
expiration of this Agreement and remain in full force and effect. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or the Remarketing Agents, as set forth in this Agreement or made by or
on behalf of them, respectively, pursuant to this Agreement, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of the Remarketing Agents or any of their controlling persons, or
by or on behalf of the Company, and shall survive any remarketing of the
Securities.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the Remarketing Agents.
Very truly yours,
CENTURYTEL, INC.
By:
--------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
BANC OF AMERICA SECURITIES LLC
By:
--------------------------------
Name:
Title:
X.X. XXXXXX SECURITIES INC.
By:
--------------------------------
Name:
Title:
WACHOVIA CAPITAL MARKETS, LLC
By:
--------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
not individually but solely as Purchase
Contract Agent and as attorney-in-fact
for the holders of the Purchase Contracts
By:
---------------------------------
Name:
Title:
SCHEDULE I
Securities subject to the remarketing: Senior Notes, Series J, due 2007 of
CenturyTel, Inc. (the "Securities").
Purchase Contract Agreement, dated as of May 1, 2002 (the "Purchase Contract
Agreement") by and between CenturyTel, Inc., a Louisiana corporation,
and Wachovia Bank, National Association, a national banking association
organized and existing under the laws of the United States.
Pledge Agreement dated as of May 1, 2002 (the "Pledge Agreement") by and
between CenturyTel, Inc., a Louisiana corporation, JPMorgan Chase Bank
N.A., a national banking association, and Wachovia Bank, National
Association, a national banking association organized and existing
under the laws of the United States.
Indenture dated as of March 31, 1994 (the "Senior Indenture") by and between
CenturyTel, Inc., a Louisiana corporation, and Regions Bank
(successor-in-interest to First American Bank and Trust of Louisiana
and Regions Bank of Louisiana), an Alabama state banking corporation,
as trustee.
First Supplemental Indenture, dated as of May 1, 2002 (the "First
Supplemental Indenture" and, together with the Senior Indenture, the
"Indenture") by and between CenturyTel, Inc., a Louisiana corporation,
and Regions Bank, an Alabama state banking corporation, as trustee.
Aggregate Principal Amount of Securities: Up to $500,000,000.
Underwriting Agreement, dated April 30, 2002 (the "Underwriting Agreement")
among CenturyTel, Inc. and Xxxxxxx Xxxxx & Co., as Representative
of the several Underwriters.
Remarketing Closing Date, Time and Location: 10:00 a.m., New York time, on the
third Business Day following the Initial Remarketing Date, the Second
Remarketing Date, the Third Remarketing Date or the Final Remarketing
Date, as the case may be (or such other time as the Company and the
Remarketing Agents mutually agree), at the offices of Pillsbury
Winthrop LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx (the "Closing
Location").
SCHEDULE II
SUBSIDIARIES
Name
--------
CenturyTel Arkansas Holdings, Inc.
CenturyTel of Central Wisconsin, LLC
CenturyTel of Xxxxxxxxxx, LLC
(successor to Xxxxxxxxxx Telephone Company)
CenturyTel of Arkansas, Inc.
(formerly named Century Telephone of Arkansas, Inc.)
CenturyTel of Mountain Home, Inc.
(formerly named Mountain Home Telephone Co., Inc.)
CenturyTel of Wisconsin, LLC
(successor to Century Telephone of Wisconsin, Inc.)
CenturyTel Midwest-Michigan, Inc.
(formerly named Century Telephone Midwest, Inc.)
CenturyTel of Ohio, Inc.
(formerly named Century Telephone of Ohio, Inc.)
CenturyTel of Alabama, LLC
Spectra Communications Group, LLC
Telephone USA of Wisconsin, LLC
CenturyTel of Washington, Inc.
CenturyTel of Eagle, Inc.
CenturyTel of Midwest-Xxxxxxx, LLC
CenturyTel of Montana, Inc.
CenturyTel of Northwest Arkansas, LLC
CenturyTel of Central Arkansas, LLC
CenturyTel Holdings, Inc.
CenturyTel of the Midwest-Wisconsin, LLC
CenturyTel of the Northwest, Inc.
CenturyTel of Michigan, Inc.
CenturyTel of San Marcos, Inc.
CenturyTel Service Group, LLC
