EXHIBIT 4.8
EXECUTION COPY
, dated as of May 6, 2002 (the
"Agreement") by and between ALLTEL Corporation, a Delaware corporation (the
"Company"), X. X. Xxxxxx Trust Company, National Association, a national banking
association, 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 Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the
"Remarketing Agent").
WITNESSETH:
WHEREAS, the Company will issue $1,250,000,000 (or
$1,437,500,000 if the underwriters' overallotment option is exercised in full)
aggregate Stated Amount of its equity units (the "Equity Units") under the
Purchase Contract Agreement, dated as of May 6, 2002, by and between the
Purchase Contract Agent and the Company as amended or supplemented from time to
time (the "Purchase Contract Agreement"); and
WHEREAS, the Equity Units will initially consist of 25,000,000
(or 28,750,000 if the underwriters' overallotment option is exercised in full)
units referred to as "Corporate Units"; and
WHEREAS, the Company will issue, concurrently in connection
with the issuance of the Equity Units, $1,250,000,000 (or $1,437,500,000 if the
underwriters' overallotment option is exercised in full) aggregate principal
amount of senior notes due May 17, 2007 (the "Notes") of the Company; and
WHEREAS, the Notes forming a part of the Corporate Units will
be pledged pursuant to the Pledge Agreement as amended or supplemented from time
to time (the "Pledge Agreement"), dated as of May 6, 2002, by and among the
Company, Wachovia Bank, National Association, as collateral agent (the
"Collateral Agent") and the Purchase Contract Agent, to secure a Corporate Unit
Holder's obligations under the Purchase Contract made under the Purchase
Contract Agreement on the Purchase Contract Settlement Date; and
WHEREAS, the Notes of the Note holders electing to have their
Notes remarketed, and the Notes of the Corporate Unit Holders who have not
settled their Purchase Contracts early (as provided in the Purchase Contract
Agreement), will be remarketed by the Remarketing Agent on the third Business
Day immediately preceding February 17, 2005 (the "Initial Remarketing Date");
and
WHEREAS, in the event of a Failed Initial Remarketing, the
Notes of the Note holders electing to have their Notes remarketed, and the Notes
of the Corporate Unit Holders who have elected not to settle the Purchase
Contracts related to their Corporate Units by Cash Settlement and who have not
settled their Purchase Contracts early (as provided in the Purchase
Contract Agreement), will be remarketed by the Remarketing Agent on the third
Business Day immediately preceding the Purchase Contract Settlement Date; and
WHEREAS, in the event of a Successful Initial Remarketing, the
applicable interest rate on the Notes will be reset on the Initial Remarketing
Date, to the Reset Rate to be determined by the Reset Agent as the rate that
such Notes should bear in order for the Applicable Principal Amount of the Notes
to have an approximate aggregate market value of 100.5% 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 permitted by applicable law; and
WHEREAS, in the event of a Failed Initial Remarketing, the
applicable interest rate on the Notes that remains outstanding on and after the
Purchase Contract Settlement Date will be reset on the third Business Day
immediately preceding the Purchase Contract Settlement Date, to the Reset Rate
to be determined by the Reset Agent as the rate that such Notes should bear in
order to have an approximate market value of 100.5% of the aggregate principal
amount of the Notes on the third Business Day immediately preceding the Purchase
Contract Settlement Date, provided that in the determination of such Reset Rate,
the Company shall, if applicable, limit the Reset Rate to the maximum rate
permitted by applicable law; and
WHEREAS, the Company has requested Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") to act as
the Reset Agent and as the Remarketing Agent, and as such to perform the
services described herein; and
WHEREAS, Xxxxxxx Xxxxx is willing to act as Reset Agent and
Remarketing Agent 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
herein 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, in
the recitals hereto or in the paragraph preceding such recitals 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 Agent.
(a) Subject to the terms and conditions of this Agreement,
the Company hereby appoints Xxxxxxx Xxxxx and Xxxxxxx Xxxxx hereby accepts such
appointment:
(i) as the Reset Agent to determine, in
consultation with the Company and in the manner provided
for herein and in the Indenture (as in effect on the date of
this ), with respect to the Notes (1)
the Reset Rate that, in the opinion of the Reset Agent,
will, when applied to the Notes, enable the Applicable
Principal Amount of the Notes to have an approximate
aggregate market value of 100.5% of the Treasury Portfolio
Purchase Price as of the Initial Remarketing Date and (2)
in the event of a Failed Initial Remarketing, the Reset
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Rate that, in the opinion of the Reset Agent, will, when
applied to the Notes, enable a Note to have an approximate
market value of 100.5% of its principal amount as of the
third Business Day preceding the Purchase Contract
Settlement Date, provided, in each case, that the Company,
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by notice to the Reset Agent prior to the tenth Business
Day preceding (x) February 17, 2005, in the case of the
Initial Remarketing, or (y) the Purchase Contract
Settlement Date, in the case of the Secondary Remarketing,
shall, if applicable, limit the Reset Rate so that it does
not exceed the maximum rate permitted by applicable law;
and
(ii) as the exclusive Remarketing Agent (subject
to the right of Xxxxxxx Xxxxx to appoint additional
remarketing agents hereunder as described below) to (1)
remarket the Notes of the Note holders electing to have
their Notes remarketed and of the Corporate Unit Holders
who have not elected early settlement of the Purchase
Contracts on the Initial Remarketing Date, for settlement
on February 17, 2005 and (2) in the case of a Failed
Initial Remarketing, remarket the Notes of the Note
holders electing to have their Notes remarketed or
remarket the Notes of the Corporate Unit Holders who have
not elected early settlement of the Purchase Contracts or
who 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 Purchase Contracts through Cash Settlement.
In connection with the remarketing contemplated hereby, the
Remarketing Agent 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 Agent may agree
upon, it being understood that changes may be necessary in the representations,
warranties, covenants and other provisions of the Supplemental due to changes in law or facts and circumstances or in the event that
Xxxxxxx Xxxxx is not the sole remarketing agent, and with such further changes
therein as the Remarketing Agent may reasonably request) or (ii) in such other
form as the Remarketing Agent may reasonably request, subject to the approval of
the Company (such approval not to be unreasonably withheld). Anything herein to
the contrary notwithstanding, Xxxxxxx Xxxxx shall not be obligated to act as
Remarketing Agent or Reset Agent hereunder unless the Supplemental is in form and substance reasonably satisfactory to Xxxxxxx Xxxxx. The
Company agrees that Xxxxxxx Xxxxx shall have the right, on 15 Business Days'
written 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 agent.
(b) Pursuant to the Supplemental ,
the Remarketing Agent, either as sole remarketing agent or as representative of
a group of remarketing agents appointed as aforesaid, will agree, subject to
the terms and conditions set forth herein and therein, to use its reasonable
efforts to (i) remarket, on the Initial Remarketing Date, the Notes that the
Trustee (as such term is defined in the Indenture) shall have notified the
Remarketing Agent have been tendered for, or otherwise are to be included in,
the Initial Remarketing, at a price per Note such that the aggregate price for
the Applicable Principal Amount of the Notes is
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approximately 100.5% of the sum of the Treasury Portfolio Purchase Price plus
the Separate Notes Purchase Price and (ii) in the event of a Failed Initial
Remarketing, remarket, on the third Business Day immediately preceding the
Purchase Contract Settlement Date, the Notes that the Trustee shall have
notified the Remarketing Agent have been tendered for, or otherwise are to be
included in, the Secondary Remarketing, at a price of approximately 100.5% of
the aggregate principal amount of such Notes.
Notwithstanding the preceding sentence, the Remarketing Agent
shall not remarket any Notes for a price less than the price necessary for the
Applicable Principal Amount of the Notes to have an aggregate price equal to
100% of the sum of the Treasury Portfolio Purchase Price plus the Separate Notes
Purchase Price (the "Minimum Initial Remarketing Price"), in the case of the
Initial Remarketing, or the aggregate principal amount of such Notes, in the
case of the Secondary Remarketing. After deducting the fee specified in Section
3 below, the proceeds of such Initial Remarketing or Secondary 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 5.4 or 5.5 of the
Purchase Contract Agreement (each of which Sections are incorporated herein by
reference). The right of each holder of Notes or Corporate Units to have Notes
tendered for the Initial Remarketing or the Secondary Remarketing, as the case
may be, shall be limited to the extent that (i) the Remarketing Agent conducts
an Initial Remarketing and, in the event of a Failed Initial Remarketing, a
Secondary Remarketing pursuant to the terms of this Agreement, (ii) Notes
tendered have not been called for redemption, (iii) the Remarketing Agent is
able to find a purchaser or purchasers for tendered Notes at a price of not less
than the Minimum Initial Remarketing Price, in the case of the Initial
Remarketing, and 100% of the principal amount thereof, in the case of the
Secondary Remarketing and (iv) such purchaser or purchasers deliver the purchase
price therefor to the Remarketing Agent as and when required.
(c) It is understood and agreed that neither the
Remarketing Agent nor the Reset Agent shall have any obligation whatsoever to
purchase any Notes, whether in the Initial Remarketing, Secondary Remarketing
or otherwise, and shall in no way be obligated to provide funds to make payment
upon tender of 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 Agent
shall not be deemed an underwriter of the remarketed Notes. The Company shall
not be obligated in any case to provide funds to make payment upon tender of
Notes for remarketing.
Section 3. Fees.
In the event of a Successful Initial Remarketing, the
Remarketing Agent shall retain as a remarketing fee (the "Remarketing Fee"), an
amount not exceeding 25 basis points (0.25%) of the Minimum Initial Remarketing
Price, from any amount received in connection with such Initial Remarketing in
excess of the Minimum Initial Remarketing Price. In the event of a Successful
Secondary Remarketing, the Remarketing Agent shall retain as the Remarketing
Fee, an amount not exceeding 25 basis points (0.25%) of the principal amount of
the remarketed Notes, from any amount received in connection with such Secondary
Remarketing in excess of the aggregate principal amount of such remarketed
Notes. In addition, the Reset Agent shall, in either case, receive from the
Company a reasonable and customary fee (the "Reset Agent Fee");
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provided, however, that if the Remarketing Agent shall also act as the Reset
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Agent, then the Reset Agent shall not be entitled to receive any such Reset
Agent Fee. Payment of such Reset Agent Fee shall be made by the Company on the
Initial Remarketing Date, in the case of a Successful Initial Remarketing, or
on the third Business Day immediately preceding the Purchase Contract
Settlement Date, in the case of a Successful Secondary Remarketing, in
immediately available funds or, upon the instructions of the Reset Agent, by
certified or official bank check or checks or by wire transfer.
Section 4. Replacement and Resignation of Remarketing Agent.
(a) The Company may in its absolute discretion replace
Xxxxxxx Xxxxx as the Remarketing Agent and as the Reset Agent hereunder by
giving notice prior to 3:00 p.m., New York City time (i) on the eleventh
Business Day immediately prior to February 17, 2005, or (ii) in the event of a
Failed Initial Remarketing, prior to 3:00 p.m., New York City time on the
eleventh Business Day immediately prior to the Purchase Contract Settlement
Date, provided, in either case, that the Company must replace Xxxxxxx Xxxxx
both as Remarketing Agent and as Reset Agent unless Xxxxxxx Xxxxx shall agree
to continue to serve solely in one such capacity. Any such replacement shall
become effective upon the Company's appointment of a successor to perform the
services that would otherwise be performed hereunder by the Remarketing Agent
and the Reset Agent. Upon providing such notice, the Company shall use all
reasonable efforts to appoint such a successor and to enter into a with such successor as soon as reasonably practicable. The Company
shall notify the Purchase Contract Agent and the Collateral Agent of the
appointment of any such successor.
(b) Xxxxxxx Xxxxx may resign at any time and be discharged
from its duties and obligations hereunder as the Remarketing Agent and/or as
the Reset Agent by giving notice prior to 3:00 p.m., New York City time (i) on
the eleventh Business Day immediately prior to February 17, 2005 or (ii) in the
event of a Failed Initial Remarketing, on the eleventh Business Day immediately
prior to the Purchase Contract Settlement Date. Any such resignation shall
become effective upon the Company's appointment of a successor to perform the
services that would otherwise be performed hereunder by the Remarketing Agent
and/or the Reset Agent. Upon receiving notice from the Remarketing Agent and/or
the Reset Agent that it wishes to resign hereunder, the Company shall appoint
such a successor and enter into a remarketing agreement with it as soon as
reasonably practicable.
Section 5. Dealing in the Securities.
Each of the Remarketing Agent and the Reset Agent, when acting
hereunder or, in the case of the Remarketing Agent, 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
Notes, Treasury Units, Corporate Units or any other securities of the Company.
With respect to any Notes, Treasury Units, Corporate Units or any other
securities of the Company owned by it, each of the Remarketing Agent and the
Reset Agent may exercise any vote or join in any action with like effect as if
it did not act in any capacity hereunder. Each of the Remarketing Agent and the
Reset 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.
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Section 6. Registration Statement and Prospectus.
(a) In connection with the Initial Remarketing, if and to
the extent required in the view of counsel (which need not be an opinion but
shall be expressed in writing) for each of the Remarketing Agent and the
Company by applicable law, regulations or interpretations in effect at the time
of such Initial Remarketing, the Company (i) shall use reasonable efforts to
have a registration statement relating to the Notes effective under the
Securities Act of 1933, as amended (the "1933 Act") prior to the third Business
Day immediately preceding February 17, 2005, (ii) if requested by the
Remarketing Agent, shall furnish a current preliminary prospectus and, if
applicable, a current preliminary prospectus supplement to be used by the
Remarketing Agent in the Initial Remarketing not later than seven Business Days
prior to February 17, 2005 (or such earlier date as the Remarketing Agent may
reasonably request) and in such quantities as the Remarketing Agent may
reasonably request and (iii) shall furnish a current final prospectus and, if
applicable, a final prospectus supplement to be used by the Remarketing Agent
in the Initial Remarketing not later than the third Business Day immediately
preceding February 17, 2005 in such quantities as the Remarketing Agent may
reasonably request, and shall pay all expenses relating thereto.
(b) In the event of a Failed Initial Remarketing and in
connection with the Secondary Remarketing, if and to the extent required in the
view of counsel (which need not be an opinion but shall be expressed in
writing) for either the Remarketing Agent or the Company by applicable law,
regulations or interpretations in effect at the time of such Secondary
Remarketing, the Company (i) shall use reasonable efforts to have a
registration statement relating to the Notes effective under the 1933 Act prior
to the third Business Day immediately preceding the Purchase Contract
Settlement Date, (ii) if requested by the Remarketing Agent, shall furnish a
current preliminary prospectus and, if applicable, a current preliminary
prospectus supplement to be used by the Remarketing Agent in the Secondary
Remarketing not later than seven Business Days prior to the Purchase Contract
Settlement Date (or such earlier date as the Remarketing Agent may reasonably
request) and in such quantities as the Remarketing Agent may reasonably request
and (iii) shall furnish a current final prospectus and, if applicable, a final
prospectus supplement to be used by the Remarketing Agent in the Secondary
Remarketing not later than the third Business Day immediately preceding the
Purchase Contract Settlement Date in such quantities as the Remarketing Agent
may reasonably request, and shall pay all expenses relating thereto.
(c) If in connection with the Initial Remarketing or, in
the event of a Failed Initial Remarketing, the Secondary Remarketing, it shall
not be possible, in the view of counsel (which need not be an opinion but shall
be expressed in writing) for each of the Remarketing Agent and the Company,
under applicable law, regulations or interpretations in effect at the time of
such Initial Remarketing or such Secondary Remarketing to register the offer
and sale by the Company of the Notes under the 1933 Act as otherwise
contemplated by this Section 6, the Company (i) shall use its reasonable
efforts to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper and advisable to permit and effectuate the
offer and sale of the Notes in connection with the Initial Remarketing or the
Secondary Remarketing, as the case may be, without registration under the 1933
Act pursuant to an exemption therefrom, if available, including the exemption
afforded by Rule 144A under the rules and regulations promulgated under the
1933 Act by the Commission, (ii) if requested by the Remarketing Agent,
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shall furnish a current preliminary remarketing memorandum to be used by the
Remarketing Agent in the Initial Remarketing or the Secondary Remarketing, as
the case may be, not later than seven Business Days prior to February 17, 2005,
in the case of the Initial Remarketing, or the Purchase Contract Settlement
Date, in the case of the Secondary Remarketing (or in either case such earlier
date as the Remarketing Agent may reasonably request) and in such quantities as
the Remarketing Agent may reasonably request and (iii) shall furnish a current
final remarketing memorandum to be used by the Remarketing Agent in the Initial
Remarketing or the Secondary Remarketing, as the case may be, not later than
the third Business Day immediately preceding February 17, 2005, in the case of
the Initial Remarketing, or the Purchase Contract Settlement Date, in the case
of the Secondary Remarketing, in such quantities as the Remarketing Agent may
reasonably request, and shall pay all expenses relating thereto.
(d) The Company shall also take all such actions as may
(upon advice of counsel to the Company or the Remarketing Agent) be necessary
or desirable under state securities or blue sky laws in connection with the
Initial Remarketing and the Secondary Remarketing.
Section 7. Conditions to the Remarketing Agent's Obligations.
(a) The obligations of the Remarketing Agent and the Reset
Agent under this Agreement and, in the case of the Remarketing Agent, 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 Notes tendered for, or
otherwise to be included in the Initial Remarketing or Secondary Remarketing,
as the case may be, have not been called for redemption, (ii) the Remarketing
Agent is able to find a purchaser or purchasers for tendered Notes (1) in the
case of the Initial Remarketing, at a price not less than Minimum Initial
Remarketing Price and (2) in the case of the Secondary Remarketing, at a price
not less than 100% of the principal amount thereof, (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 and, in the event of a Failed Initial Remarketing, in
connection with the Secondary 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, if the Quotation Agent is not an Affiliate of the Remarketing
Agent, the Quotation Agent giving the Remarketing Agent notice of the Treasury
Portfolio Purchase Price no later than 10:00 a.m., New York City time, on the
fourth Business Day prior to February 17, 2005, in the case of the Initial
Remarketing, and if the Quotation Agent is not an Affiliate of the Remarketing
Agent, the Quotation Agent giving the Remarketing Agent notice of the aggregate
principal amount, as the case may be, of Notes to be remarketed, no later than
10:00 a.m., New York City time, on the fourth Business Day prior to the
Purchase Contract Settlement Date, in the case of the Secondary Remarketing,
and, in each case, the Collateral Agent and the Custodial Agent concurrently
delivering the Notes to be remarketed to the Remarketing Agent), (iv) no Event
of Default (as defined in the Indenture) shall have occurred and be continuing,
(v) the accuracy of any representations and warranties of the Company or any of
its subsidiaries included and incorporated by reference in this Agreement and
the Supplemental Remarketing Agreement or in certificates of any officer of the
Company delivered pursuant to the provisions included or incorporated by
reference in this Agreement or the Supplemental Remarketing Agreement, (vi)
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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) with respect to the Notes, or
event that with the passage of time or the giving of notice or both would
become an Event of Default with respect to the Notes, has occurred and is
continuing under the Indenture, then the obligations and duties of the
Remarketing Agent and the Reset Agent under this Agreement and the Supplemental
Remarketing Agreement shall be suspended until such default or event has been
cured. The Company will promptly give the Remarketing Agent notice of all such
defaults and events of which the Company is aware.
Section 8. Termination of Remarketing Agreement.
This Agreement shall terminate as to any Remarketing Agent or
Reset 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, the obligations set forth in Section 3 hereof shall survive
and remain in full force and effect until all amounts payable to the Remarketing
Agent as a result of a Successful Initial Remarketing performed by such
Remarketing Agent under said Section 3 shall have been paid in full; provided,
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however, that if any Reset Agent resigns prior to a successful remarketing, then
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the obligations set forth in Section 3 hereof shall not survive the termination
of this Agreement and no fee shall be payable to such Reset Agent in such
capacity. In addition, each former Remarketing Agent and Reset Agent shall be
entitled to the rights and benefits under Section 10 of this Agreement
notwithstanding the replacement or resignation of such Remarketing Agent or
Reset Agent.
Section 9. Remarketing Agent's Performance; Duty of Care.
The duties and obligations of the Remarketing Agent and the
Reset Agent shall be determined solely by the express provisions of this
Agreement and, in the case of the Remarketing Agent, the Supplemental
Remarketing Agreement and Sections 5.4(a) and 5.5(b) of the Purchase Contract
Agreement. No implied covenants or obligations of or against the Remarketing
Agent or the Reset Agent shall be read into this Agreement or, in the case of
the Remarketing Agent, the Supplemental Remarketing Agreement. In the absence of
bad faith on the part of the Remarketing Agent or the Reset Agent, as the case
may be, the Remarketing Agent and the Reset Agent each may conclusively rely
upon any document furnished to it which 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. Each of the Remarketing
Agent and the Reset Agent 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. Neither the Remarketing Agent nor the Reset Agent shall
have any obligation to determine whether there is any limitation under
applicable law on the Reset Rate on the Notes or, if there is any such
limitation, the maximum permissible Reset Rate on the 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 17, 2005, in the case of the
Initial Remarketing, and
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prior to the tenth Business Day before Purchase Contract Settlement Date, in
the case of the Secondary Remarketing) as to whether or not there is any such
limitation and, if so, the maximum permissible Reset Rate. Neither the
Remarketing Agent nor the Reset Agent shall incur any liability under this
Agreement or the Supplemental Remarketing Agreement, as the case may be, to any
beneficial owner or holder of Notes, or other securities, either in its
individual capacity or as Remarketing Agent or Reset Agent, as the case may be,
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, except to the extent that it shall have
been determined by a court of competent jurisdiction by final and nonappealable
judgment that such liability has resulted from the willful misconduct, bad
faith or gross negligence of the Remarketing Agent or the Reset Agent. The
provisions of this Section 9 shall survive any termination of this Agreement
and shall also continue to apply to every Remarketing Agent and Reset Agent
notwithstanding their resignation or removal.
Section 10. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Remarketing Agent, the Reset Agent and their respective directors, officers,
employees, agents, affiliates and each person, if any, who controls the
Remarketing Agent or the Reset Agent within the meaning of either Section 15 of
the 1933 Act or Section 20 of the Securities Exchange Act of 1934, as amended
(the "1934 Act") (the Remarketing Agent, the Reset Agent and each such person
or entity being an "Agent Indemnified Party"), as follows:
(i) from and against any and all losses, claims,
damages and liabilities whatsoever, joint or several, as
incurred, to which such Agent Indemnified Party may become
subject (to the extent such loss, claim, damage or
liability arises from such Agent Indemnified Party's
capacity as Remarketing Agent or Reset Agent) under any
applicable federal or state law, or otherwise, and related
to, arising out of, or based on (A) the failure to have an
effective Registration Statement (as defined in the
Supplemental Remarketing Agreement) under the 1933 Act
relating to the Notes, as the case may be, if required, or
the failure to satisfy the prospectus delivery
requirements of the 1933 Act because the Company failed to
provide the Remarketing Agent with a Prospectus (as
defined in the Supplemental Remarketing Agreement) for
delivery, or (B) any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement or any amendment thereto (including any
information deemed to be a part of the Registration
Statement at the time it became effective pursuant to
paragraph (b) of Rule 430A under the 1933 Act, if
applicable), 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 (C) any untrue statement or alleged untrue statement of
a material fact contained in any preliminary prospectus or
the Prospectus, 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 (D) any untrue statement or alleged
untrue statement of a material fact contained in any
preliminary remarketing memorandum or any final
remarketing memorandum, or any amendment or
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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 (E) any
untrue statement or alleged untrue statement of a material
fact contained in any other documents (including, without
limitation, any documents incorporated or deemed to be
incorporated by reference in any such documents) provided
by the Company for use in connection with the remarketing
of the Notes or any of the transactions related thereto,
or (F) any breach by the Company of any of the
representations, warranties or agreements included or
incorporated by reference in this Agreement or the
Supplemental Remarketing Agreement, or (G) any failure by
the Company to make or consummate the remarketing of the
Notes (including, without limitation, any Failed Initial
Remarketing or Failed Secondary Remarketing) or the
withdrawal, recession, termination, amendment or extension
of the terms of such remarketing, or (H) any failure on
the part of the Company to comply, 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 Notes (collectively, the
"Operative Documents"), or (I) the remarketing of the
Notes, as the case may be, or any other transaction
contemplated by any of the Operative Documents, or the
engagement of the Remarketing Agent or the Reset Agent
pursuant to, or the performance by the Remarketing Agent
or the Reset Agent of the respective services contemplated
by, this Agreement or the Supplemental Remarketing
Agreement, whether or not the Initial Remarketing or the
Secondary Remarketing or the reset of the interest rate on
the Notes as contemplated herein actually occur;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent
of the aggregate amount paid in settlement of any
litigation or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or
of any claim whatsoever related to, arising out of or
based on any matter described in (i) above; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel
chosen by the Remarketing Agent or the Reset Agent, as the
case may be), reasonably incurred in investigating or
defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever related to, arising
out of or based on any matter described in (i) above to
the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that the Company shall not be liable under clause (i)(B),
-------- -------
(i)(C), (i)(D) or (i)(E) to the extent any such loss, claim, damage, liability
or expense arises out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Remarketing Agent or
the Reset Agent expressly for use in the Registration Statement (or any
amendment thereto), any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or any preliminary or final remarketing
memorandum (or any amendment or
10
supplement thereto) or any other documents used in connection with remarketing
of the Notes, as the case may be;
provided, further, that with respect to any untrue statement or omission of a
-------- -------
material fact made in any preliminary prospectus, the indemnity agreement
contained in this Section 10(a) shall not inure to the benefit of the
Remarketing Agent or the Reset Agent, as applicable, to the extent that any such
loss, claim, damage or liability of the Remarketing Agent occurs under the
circumstance where (w) the Company had previously furnished copies of the
Prospectus to the Remarketing Agent, (x) delivery of the Prospectus was required
to be made to such person, (y) the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission of a material fact contained
in the preliminary prospectus was corrected in the Prospectus, and (z) there was
not sent or given to such person by or on behalf of the Remarketing Agent or the
Reset Agent, as applicable, at or prior to the written confirmation of the sale
of Notes to such person, a copy of the Prospectus and the delivery thereof would
have constituted a complete defense to such person's claim in respect of such
untrue statement of alleged untrue statement or omission; provided, further,
-------- -------
that the Company shall not be liable under clause (i) (F), (i)(G) or (i)(I) to
the extent that such loss, claim, damage or liability has, by final judicial
determination, resulted from the willful misconduct, bad faith or gross
negligence of the Remarketing Agent or the Reset Agent.
Other than as set forth in Section 10(b) below, the Company
agrees that no Agent Indemnified Party shall have any liability (whether direct
or indirect, in contract or tort or otherwise) to the Company or its respective
security holders or creditors relating to or arising out of the engagement of
the Remarketing Agent or the Reset Agent pursuant to, or the performance by the
Remarketing Agent or the Reset Agent of their respective services contemplated
by, this Agreement or the Supplemental Remarketing Agreement except to the
extent that any loss, claim, damage, liability or expense is found in a final
judgment in a court of competent jurisdiction to have resulted from the willful
misconduct, gross negligence or bad faith of the Remarketing Agent or the Reset
Agent, as the case may be.
The Company agrees that, without the prior written consent of
the Remarketing Agent or the Reset Agent, as the case may be, it will not
settle, compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any action or claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 10.
(b) (whether or not Xxxxxxx Xxxxx or any other Agent
Indemnified Party is an actual or potential party to such claim, action or
proceeding), unless such settlement, compromise or consent (i) includes an
unconditional release of each Agent Indemnified Party from all liability
arising out of such litigation, investigation, proceeding, action or claim and
(ii) does not include a statement as to, or an admission of, fault, culpability
or a failure to act by or on behalf of an Agent Indemnified Party.
(c) The Remarketing Agent and the Reset Agent, severally
and not jointly if such parties are not Affiliates and jointly and severally if
such parties are Affiliates at the time of any Initial Remarketing or Secondary
Remarketing, agree to indemnify and hold harmless the Company, its directors
and its officers who sign any Registration Statement, and each person, if
11
any, who controls the Company within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act (the "Company Indemnified Parties") to
the same extent as the foregoing indemnity from the Company to the Agent
Indemnified Parties, but only with reference to information relating to such
Remarketing Agent and Reset Agent furnished to the Company in writing by such
Remarketing Agent and Reset Agent expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto or any other documents used in connection with the
Remarketing of the Notes, as the case may be.
Each of the Remarketing Agent and the Reset Agent agrees that,
without the Company's prior written consent, it (and each Agent Indemnified
Party) will not settle, compromise or consent to the entry of any judgement with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any action or claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 10(b) (whether or not the Company or any other Company
Indemnified Party is an actual or potential party to such claim, action or
proceeding), unless such settlement, compromise or consent (i) includes an
unconditional release of each Company Indemnified Party from all liability
arising out of such litigation, investigation, proceeding, action or claim and
(ii) does not include a statement as to, or an admission of fault, culpability
or a failure to act by or on behalf of a Company Indemnified Party.
(d) If the indemnification provided for in Section 10(a)
or 10(b) hereof is for any reason unavailable to or insufficient to hold
harmless any party seeking indemnification thereunder (an "Indemnified Party")
in respect of any losses, liabilities, claims, damages or expenses referred to
therein, then the Company on the one hand, and the Remarketing Agent and the
Reset Agent on the other hand, shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such Indemnified
Party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Remarketing
Agent and the Reset Agent on the other hand from the remarketing of the Notes
contemplated hereby or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Remarketing Agent and
the Reset Agent on the other hand in connection with the statements, omissions
or other matters which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Remarketing Agent and
the Reset Agent on the other hand in connection with the remarketing of the
Notes contemplated hereby shall be deemed to be in the same respective
proportions as the aggregate principal amount of the Notes which are or are to
be remarketed bears to the aggregate fees actually received by the Remarketing
Agent and the Reset Agent under Section 3 hereof. The relative fault of the
Company on the one hand and the Remarketing Agent and the Reset Agent on the
other hand (i) in the case of an untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, shall
be determined by reference to, among other things, whether such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company on the one
hand or by the Remarketing Agent or the Reset Agent on the other hand and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or
12
omission and (ii) in the case of any other action or omission shall be
determined by reference to, among other things, whether such action or omission
was taken or omitted to be taken by the Company on the one hand, or by the
Remarketing Agent or the Reset Agent, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to prevent or
correct such action or omission. The Company, the Remarketing Agent and the
Reset Agent agree that it would not be just and equitable if contribution
pursuant to this Section 10(c) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 10(c). The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an Indemnified
Party and referred to above in this Section 10(c) shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
incurred by such Indemnified Party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or any such omission or alleged
omission or any other such action or omission; provided, however, that to the
-------- -------
extent permitted by applicable law, in no event shall the Remarketing Agent or
the Reset Agent be required to contribute any amount which, in the aggregate,
exceeds the aggregate fees received by them under Section 3 of this Agreement.
No investigation or failure to investigate by any Indemnified Party shall
impair the foregoing indemnification and contribution agreement or any rights
an Indemnified Party may have. 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.
(e) In the event an Agent Indemnified Party is requested
or required to appear as a witness in any action brought by or on behalf of or
against the Company, the Company agrees to reimburse the Remarketing Agent or
the Reset Agent, as the case may be, for all reasonable expenses, as incurred,
which are incurred by the Remarketing Agent or the Reset Agent, as the case may
be, in connection with such Agent Indemnified Party's appearing and preparing
to appear as such a witness, including, without limitation, the reasonable fees
and disbursements of its legal counsel, and to compensate the Remarketing Agent
or the Reset Agent, as the case may be, in an amount to be mutually agreed upon.
(f) Promptly after receipt by an Indemnified Party of
written notice of any claim or commencement of an action or proceeding with
respect to which indemnification may be sought hereunder, such Indemnified
Party will notify the party from whom indemnification is sought (the
"Indemnifying Party") in writing of such claim or of the commencement of such
action or proceeding, but failure to so notify the Indemnifying Party will not
relieve the Indemnifying Party from any liability which it may have to such
Indemnified Party under paragraph (a) or (b) above except to the extent it
resulted in forfeiture of substantial rights and defenses by the Indemnifying
Party by such failure to notify, and in any event will not relieve the
Indemnifying Party from any other liability that it may have to such
Indemnified Party. The Indemnified Party, shall retain counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party and
any others the Company may designate in such proceeding and shall pay the
reasonable fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any Indemnified Party shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party unless (i) the Company shall have agreed
in writing to pay such fees and expenses, (ii) the
13
Indemnifying Party shall have failed to take reasonable steps necessary to
defend diligently any claim within ten calendar days after receiving written
notice from the Indemnified Party that that Indemnified Party believes the
Indemnifying Party has failed to take such steps or (iii) the named parties to
any such proceeding (including any impleaded parties) include both the
Indemnifying Party and the Indemnified Party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Company shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm
(in addition to any local counsel) for all such Indemnified Parties, and that
all such fees and expenses shall be reimbursed as they are incurred after
receipt of adequate documentation thereof.
(g) Anything herein or in the Supplemental Remarketing
Agreement to the contrary notwithstanding, the provisions of this Section 10,
and the rights of the Remarketing Agent, the Reset Agent 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 Agent, the Reset Agent
or any other Indemnified Party may have under any other instrument or agreement.
Section 11. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York.
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 day
thereafter on which no Notes are outstanding, or, if earlier, the Business Day
immediately following February 17, 2005, in the case of a Successful Initial
Remarketing, or the Business Day immediately following the Purchase Contract
Settlement Date, in the case of a Successful Secondary Remarketing. Anything
herein to the contrary notwithstanding, the provisions of the last sentence of
Section 8 hereof and 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
Agent, the Reset Agent or any of their controlling persons, or by or on behalf
of the Company or the Purchase Contract Agent, and shall survive the
remarketing of the 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 Agent and the Reset Agent. The rights and obligations of the
Remarketing Agent and the Reset Agent hereunder may not be assigned or
delegated to any other person without the prior written consent of the Company,
except that the Remarketing
14
Agent 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, the Remarketing Agent and the Reset Agent
and their respective successors and assigns and the other Indemnified Parties
(as defined in Section 10 hereof) and the successors, assigns, heirs and legal
representatives of the Indemnified Parties. The terms "successors" and
"assigns" shall not include any purchaser of Notes merely because of such
purchase.
Section 14. Headings. Section headings have been inserted in
this Agreement and the Supplemental Remarketing Agreement as a matter of
convenience of reference only, and it is agreed that such section headings are
not a part of this Agreement or the Supplemental Remarketing Agreement and will
not be used in the interpretation of any provision of this Agreement or the
Supplemental Remarketing Agreement.
Section 15. Severability. If any provision of this Agreement
or the Supplemental Remarketing 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 or the Supplemental
Remarketing Agreement, as the case may be, invalid, inoperative or
unenforceable to any extent whatsoever.
Section 16. Counterparts. This Agreement and the
Supplemental Remarketing Agreement may be executed in 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 and the Supplemental
Remarketing Agreement may be amended by any instrument in writing signed by the
parties hereto. 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 Indenture, the Pledge Agreement, the Notes,
the Equity Units or any other instruments or agreements relating to the Notes
or the Equity Units which would adversely affect the rights, duties or
obligations of the Remarketing Agent or the Reset Agent without the prior
written consent of the Remarketing Agent or the Reset Agent, as the case may be.
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 ALLTEL Corporation, Xxx Xxxxxx Xxxxx, Xxxxxx
Xxxx, Xxxxxxxx 00000 (facsimile: (000) 000-0000), Attention: Xxxxxxx X. Xxxxxx;
if to the Remarketing Agent or Reset Agent, to Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, at Four World Financial Center,
Xxxxx Xxxxx 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (facsimile: (000) 000-0000),
Attention: Equity
15
Capital Markets, with a copy to Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (facsimile: (000) 000-0000), Attention: Xxxxxx Xxxxx III;
and if to the Purchase Contract Agent, to Chase Financial Tower, Suite 220, 000
X. Xxxxx Xxxx, Xxxxxxxxx, Xxxx 00000 (facsimile: (000) 000-0000), Attention:
Institutional Trust Services, with a copy to 15th Floor, 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, 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 Agent and the Reset Agent with such information and documents as
the Remarketing Agent or the Reset Agent 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 Agent, the Reset Agent and any accountant, attorney or other
advisor retained by the Remarketing Agent or the Reset Agent 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.
16
IN WITNESS WHEREOF, each of the Company, the Purchase Contract
Agent and the Remarketing Agent 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.
ALLTEL CORPORATION
/s/ XXXXXXX X. XXXXXXX
By: ____________________________________
Xxxxxxx X. Xxxxxxx
Name: ___________________________
Senior Vice President and
Chief Financial Officer
Title: ___________________________
CONFIRMED AND ACCEPTED:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
/s/ XXXX XXXX
By:_______________________
Authorized Signatory
X. X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION
not individually but solely as Purchase Contract
Agent and as attorney-in-fact for the holders of
the Purchase Contracts
/s/ XXXXXX X. XXXXXX
By:_______________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
17
Exhibit A to
Remarketing Agreement
Form of Supplemental Remarketing Agreement
Supplemental Remarketing Agreement dated _____________, ____
among ALLTEL Corporation, a Delaware corporation (the "Company"), Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated (the "Remarketing Agent"), and X. X. Xxxxxx
Trust Company, National Association, 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).
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 May 6, 2002 (the "Remarketing Agreement") among the Company, the
Purchase Contract Agent and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated or, if not defined in the Remarketing Agreement, the meanings
assigned to them in the Purchase Contract Agreement (as defined in Schedule I
hereto).
2. Registration Statement and Prospectus. The Company has
filed with the Securities and Exchange Commission, and there has become
effective, a registration statement on Form S-3, including a prospectus,
relating to the Securities (as such term is defined on Schedule I hereto). Such
Registration Statement, as amended, and including the information deemed to be a
part thereof pursuant to Rule 430A under the 1933 Act, and the documents
incorporated or deemed to be incorporated by reference therein, are hereinafter
called, collectively, the "Registration Statement"; (the related preliminary
prospectus dated ___________, including the documents incorporated or deemed to
be incorporated by reference therein, [and preliminary prospectus supplemented
dated __________] are hereinafter called, [collectively] the "preliminary
prospectus";] and the related prospectus dated , including the documents
incorporated or deemed to be incorporated by reference therein, [and prospectus
supplement dated ________] are hereinafter called, [collectively,] the
"Prospectus." The Company has provided copies of the Registration Statement [,
the preliminary prospectus] and the Prospectus to the Remarketing Agent, and
hereby consents to the use of the [preliminary prospectus] and the Prospectus in
connection with the remarketing of the Securities. [IN THE EVENT THAT A
REGISTRATION STATEMENT IS NOT POSSIBLE OR NOT REQUIRED, INSERT THE FOLLOWING:
The Company has provided to the Remarketing Agent, for use in connection with
remarketing of the Securities (as such term is defined on Schedule I hereto), a
[preliminary remarketing memorandum and] remarketing memorandum and [describe
other materials, if any]. Such remarketing memorandum (including the documents
incorporated or deemed to be incorporated by reference therein, [and] [describe
other materials] are hereinafter called, collectively, the "Prospectus," [and
such preliminary marketing memorandum (including the documents incorporated or
deemed to be incorporated by reference therein) is hereinafter
called a "preliminary prospectus")]. The Company hereby consents to the use of
the Prospectus [and the preliminary prospectus] in connection with the
remarketing of the Notes]. 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 1934 Act, 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), the provisions of the Terms
Agreement (other than Section 2, Section 3, Section 5, Section 6, Section 9 and
Section 10 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
Terms Agreement incorporated by reference herein, as modified by the provisions
of Section 3(b) hereof.
(b) With respect to the provisions of the Terms Agreement
incorporated herein, for the purposes hereof, (i) all references therein to the
"Underwriter" or "Underwriters" shall be deemed to refer to the Remarketing
Agent; (ii) all references therein to the "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; (iv) all references
therein to the "Registration Statement" [, the "preliminary prospectus"] or the
"Prospectus" shall be deemed to refer to the Registration Statement[, the
preliminary prospectus] and the Prospectus, respectively, as defined herein; (v)
all references therein to this "Agreement," the "Terms 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" and all similar references shall be
deemed to refer to the date of this Supplemental Remarketing Agreement; (vii)
all references therein to any "settlement date" shall be disregarded; and (viii)
[other changes, including changes relating to the offer and sale of the
Securities in connection with the Remarketing without registration under the
1933 Act in reliance upon an exemption therefrom (including the exemption
afforded by Rule 144A)].]
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 Agent agrees to use its reasonable efforts to remarket, 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 purchase price not less than 100% of the [Minimum Initial
Remarketing Price] [aggregate principal amount of the Securities]. In connection
therewith, the registered holder or holders thereof agree, in the manner
specified in Section 5 hereof, to pay to the Remarketing Agent a Remarketing
Fee, as provided in Section 3 of the Remarketing Agreement, payable by deduction
from any amount received in connection from such [Initial][Secondary]
Remarketing in excess of the [Minimum Initial Remarketing Price] [aggregate
principal amount of the Securities]. The right of each holder of Securities to
have Securities tendered for purchase shall be limited to the extent set forth
in the 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
A-2
by reference herein), the Remarketing Agent is not obligated to purchase any
Securities in the remarketing or otherwise, and neither the Company nor the
Remarketing Agent shall be obligated in any case to provide funds to make
payment upon tender of Securities for remarketing.
5. Delivery and Payment. Delivery of payment for the
remarketed Securities by the purchasers thereof identified by the Remarketing
Agent and payment of the Remarketing Fee shall be made on the Remarketing
Closing Date at the location and time specified in Schedule I hereto (or such
later date not later than five Business Days after such date as the Remarketing
Agent shall designate), which date and time may be postponed by agreement
between the Remarketing Agent and the Company. Delivery of the remarketed
Securities and payment of the Remarketing Fee shall be made to the Remarketing
Agent against payment by the respective purchasers of the remarketed Securities
of the consideration therefor as specified herein, which consideration 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.
If the Securities are not represented by a Global Security
held by or on behalf of The Depository Trust Company, certificates for the
Securities shall be registered in such names and denominations as the
Remarketing Agent may request not less than one full Business Day in advance of
the Remarketing Closing Date, and the Company, the Collateral Agent and the
registered holder or holders thereof agree to have such certificates available
for inspection, packaging and checking by the Remarketing Agent in New York, New
York not later than 1:00 p.m. on the Business Day prior to the Remarketing
Closing Date.
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, 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 ALLTEL Corporation Xxx Xxxxxx Xxxxx, Xxxxxx Xxxx
Xxxxxxxx 00000 (facsimile: (000) 000-0000), Attention: Xxxxxxx X. Xxxxxx; if to
the Remarketing Agent or Reset Agent, to Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, at Four World Financial Center, Xxxxx
Xxxxx 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (facsimile: (000) 000-0000),
Attention: Equity Capital Markets, with a copy to Shearman & Sterling, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (facsimile: (000) 000-0000),
Attention: Xxxxxx Xxxxx III; and if to the Purchase Contract Agent, to Chase
Financial Tower, Suite 220, 000 X. Xxxxx Xxxx, Xxxxxxxxx, Xxxx 00000
(facsimile: (000) 000-0000), with a copy to 15th Floor, 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Institutional Trust Services, or to such
other address as any of the above shall specify to the other in writing.
7. Conditions to Obligations of Remarketing Agent. Anything
herein to the contrary notwithstanding, the parties hereto agree (and the
holders and beneficial owners of the
A-3
Securities will be deemed to agree) that the obligations of the Remarketing
Agent 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 Remarketing Closing Date, of the conditions incorporated
by reference herein from Section 6 of the Terms Agreement as modified by
Section 3(b) hereof (including, without limitation, the delivery of opinions of
counsel, officers' certificates and accountants' comfort letters in form and
substance satisfactory to the Remarketing Agent, the accuracy as of 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). In addition, anything herein or in
the Remarketing Agreement to the contrary notwithstanding, the Remarketing
Agreement and this Agreement may be terminated by the Remarketing Agent, by
notice to the Company at any time prior to the time of settlement on the
Remarketing Closing Date, if any of the events or conditions set forth in
Section 10 of the Terms Agreement, as modified by Section 3(b) hereof, shall
have occurred or shall exist.
8. Indemnity and Contribution. Anything herein to the
contrary notwithstanding, the Remarketing Agent shall be entitled to indemnity
and contribution on the terms and conditions set forth in the Remarketing
Agreement.
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 Agent.
Very truly yours,
ALLTEL CORPORATION
By:__________________________
Name:
Title:
CONFIRMED AND ACCEPTED:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By:_________________________
Authorized Signatory
[Add other Remarketing Agents, if any]
A-4
X. X. XXXXXX TRUST COMPANY, 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:
A-5
SCHEDULE I
Securities subject to the remarketing: Senior Notes due May 17, 2007 of the
Company (the "Securities").
Purchase Contract Agreement, dated as of May 6, 2002 (the "Purchase Contract
Agreement") by and between ALLTEL
Corporation, a Delaware corporation, and X. X. Xxxxxx Trust Company,
National Association.
Pledge Agreement dated as of May 6, 2002 (the "Pledge Agreement") by and between
ALLTEL Corporation, a Delaware corporation, X. X. Xxxxxx Trust
Company, National Association, and Wachovia Bank, National
Association.
Indenture dated as of January 1, 1987 by and between ALLTEL Corporation and X.
X. Xxxxxx Trust Company, National Association, successor to Society
National Bank, as Trustee, as supplemented by a First Supplemental
Indenture dated as of March 1, 1987, a Second Supplemental Indenture
dated as of April 1, 1989, a Third Supplemental Indenture dated as of
May 8, 1990, a Fourth Supplemental Indenture dated as of March 1, 1991,
a Fifth Supplemental Indenture dated as of October 15, 1993, a Sixth
Supplemental Indenture dated as of April 1, 1994, a Seventh
Supplemental Indenture dated as of September 1, 1995, an Eighth
Supplemental Indenture dated as of March 1, 1996 and a Ninth
Supplemental Indenture dated as of April 1, 1999 (as supplemented, the
" Base Indenture").
Tenth Supplemental Indenture, dated as of May 6, 2002 (the "Tenth Supplemental
Indenture" and, together with the
Base Indenture, the "Indenture") by and between ALLTEL Corporation, a
Delaware corporation, and X. X. Xxxxxx Trust Company, National
Association.
[Minimum Initial Remarketing Price]
[Aggregate Principal Amount of Securities: $ ____________]
Underwriting Agreement, dated April 30, 2002 (the "Underwriting Agreement")
between ALLTEL Corporation and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Banc of America Securities LLC,
Xxxxxxx Xxxxx Barney, First Union Securities, Inc., XxXxxxxx
Investments Inc., Xxxxxxxx Inc. and SunTrust Capital Markets, Inc.
Remarketing Closing Date, Time and Location:
