Exhibit 1.3
EXECUTION COPY
REMARKETING AGREEMENT
REMARKETING AGREEMENT, 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, J.P. Morgan
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,
J.P.
Morgan 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, J.P. Morgan 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, J.P. Morgan Securities
Inc. and Wachovia Capital Markets, LLC, and
Banc of America Securities LLC, J.P.
Morgan 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, J.P.
Morgan 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
Remarketing Agreement (the "Supplemental
Remarketing Agreement") 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
Remarketing Agreement 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 Remarketing Agreement, Banc of
America Securities LLC, J.P. Morgan
Securities Inc. and Wachovia Capital
Markets, LLC shall not act as Remarketing
Agents hereunder. The Company agrees that
Banc of America Securities LLC, J.P.
Morgan 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 Remarketing Agreement, 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
Remarketing Agreement, 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 Remarketing
Agreement (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 Remarketing Agreement 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, J.P. Morgan 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, J.P. Morgan 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, J.P. Morgan 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 Sarbanes-Oxley 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
