Exhibit 10(EE)
Among
ALLEGHENY COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY,
PNC BANK, NATIONAL ASSOCIATION,
UNITEL VIDEO, INC.
and
RRZ PUBLIC MARKETS, INC.
Dated as of July 1, 1997
Relating to
ALLEGHENY COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
VARIABLE RATE DEMAND REVENUE BONDS
SERIES 1997
(UNITEL MOBILE VIDEO PROJECT)
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This , dated as of July 1, 1997 (the "Agreement"),
among the ALLEGHENY COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY (the "Authority"),
PNC BANK, NATIONAL ASSOCIATION (the "Trustee"), UNITEL VIDEO INC. (the
"Corporation") and RRZ PUBLIC MARKETS, INC. (the "Remarketing Agent").
W I T N E S S E T H :
WHEREAS, the Authority has issued its $5,000,000 Variable Rate Demand
Revenue Bonds, Series 1997 (Unitel Mobile Video Project) (the "Bonds") pursuant
to a Trust Indenture, dated as of July 1, 1997 (the "Indenture"), between the
Authority and PNC Bank, National Association (the "Trustee");
WHEREAS, the Bonds and the Indenture provide among other things, that the
owners of the Bonds (the "Owners"), may elect (or may be required) in certain
instances to tender their Bonds for purchase upon the terms and conditions
contained in the Bonds and the Indenture;
WHEREAS, the Indenture provides for the appointment of a remarketing agent
to perform certain duties, including the use of its best efforts to remarket any
Bonds tendered for purchase by the Owners; and
WHEREAS, the Remarketing Agent has agreed to accept the duties and
responsibilities of the remarketing agent under the Indenture and this
Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants made
herein and other valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions. Unless otherwise defined herein, all
capitalized terms shall have the meanings ascribed to them in the Indenture.
Section 2. Appointment of Remarketing Agent. Subject to the terms and
conditions contained herein, the Authority hereby appoints RRZ PUBLIC
MARKETS, INC. as exclusive Remarketing Agent for the Bonds, and RRZ PUBLIC
MARKETS, INC. hereby accepts such appointment.
Section 3. Responsibilities of Remarketing Agent. Subject to the terms and
conditions set forth in this Agreement, the Remarketing Agent agrees to perform
the duties of Remarketing Agent set forth in the Indenture. It is understood
that in undertaking to perform such duties, and in the performance thereof, it
is the intention of the parties that the Remarketing Agent will act solely as an
agent and not as a principal except as expressly provided in Section 12.
(a) Determination of Interest Rates. The Remarketing Agent shall
determine the interest rates on the Bonds in the manner and at the times
specified therefor in the Indenture.
(b) Remarketing of Tendered Bonds.
(i) The Remarketing Agent shall use its best efforts to
remarket Bonds to be purchased as described in the Indenture and to
continue to remarket on an ongoing basis any Bonds purchased by the
Bank's Agent or the Bank.
(ii) The Remarketing Agent
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(A) will suspend its remarketing efforts upon the
receipt of notice of the occurrence and continuation of an
event of default under the Letter of Credit Agreement, the
Indenture or the Loan Agreement; and
(B) may suspend its remarketing efforts immediately upon
the occurrence of any of the following events, which
suspension will continue so long as the situation continues to
exist:
(1) suspension or material limitation in trading
in securities generally on the New York Stock Exchange;
(2) a general moratorium on commercial banking
activities in Pennsylvania or New York is declared by
either federal, Commonwealth of Pennsylvania or New York
State authorities;
(3) the engagement by the United States in
hostilities if the effect of such engagement, in the
Remarketing Agent's judgment, makes it impractical or
inadvisable to proceed with the solicitation of offers
to purchase the Bonds;
(4) legislation shall be introduced by committee,
by amendment or otherwise, in, or be enacted by, the
House of Representatives or the Senate of the Congress
of the United States, or a decision by a court of the
United States shall be rendered, or a stop order,
ruling, regulation or Private Placement Memorandum by,
or on behalf of, the United States Securities and
Exchange Commission or other governmental agency having
jurisdiction of the subject matter shall be made or
proposed, to the effect that the offering or sale of
obligations of the general character of the Bonds, as
contemplated hereby, is or would be in violation of any
provision of the Securities Act of 1933, as amended (the
"Securities Act") and as then in effect, or the
Securities Exchange Act of 1934, as amended (the
"Exchange Act") and as then in effect, or the Trust
Indenture Act of 1939, as amended (the "Trust Indenture
Act") and as then in effect, or with the purpose or
effect of otherwise prohibiting the offering or sale of
obligations of the general character of the Bonds, or
the Bonds, as contemplated hereby;
(5) any event shall occur or information shall
become known, which, in the Remarketing Agent's
reasonable opinion, makes untrue, incorrect or
misleading in any material respect any statement or
information contained in the disclosure documents
provided to the Remarketing Agent in connection with the
performance of its duties hereunder, whether provided
pursuant to Section 5 or otherwise, or causes such
documents to contain an untrue, incorrect or misleading
statement of a material fact or to omit to state a
material fact required to be stated therein or necessary
to make the statements made therein, in light of the
circumstances under which they were made, not
misleading;
(6) any governmental authority shall impose, as to
the Bonds, or obligations of the general character of
the Bonds, any material restrictions not now in force,
or increase materially those now in force;
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(7) any of the representations and warranties of
the Trustee made hereunder shall not have been true and
correct, in all material respects, on the date made; or
(8) the Authority in all material respects, fails
to observe any of the covenants or agreements made
herein.
Section 4. Resignation and Removal of Remarketing Agent. The Remarketing
Agent may at any time resign and be discharged of the duties and obligations
created by this Indenture by giving at least 60 days' notice to the Authority,
the Bank, the Bank's Agent, the Corporation, the Trustee and the Trustee's
Agent. The Remarketing Agent may be removed at any time upon 30 days' notice, at
the direction of the Corporation, by an instrument, signed by the Corporation,
filed with the Remarketing Agent, the Bank, the Bank's Agent, the Trustee and
the Trustee's Agent
In the event of the resignation or removal of the Remarketing Agent, the
Remarketing Agent shall pay over, assign and deliver any moneys and Bonds held
by it in such capacity to its successor or, if there be no successor, to the
Trustee.
Section 5. Disclosure Materials.
General. If the Remarketing Agent determines that it is necessary or
desirable to use an Private Placement Memorandum or other disclosure document in
connection with its remarketing of the Bonds, the Remarketing Agent will notify
the Trustee and the Authority which will provide the Remarketing Agent with a
disclosure document in respect of the Bonds satisfactory to the Remarketing
Agent and its counsel. The Trustee will supply the Remarketing Agent with such
number of copies of the disclosure document as the Remarketing Agent requests
from time to time and the Trustee will amend the document (and all documents
incorporated by reference) so that at all times the document will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. In connection with the use of any
disclosure document by the Remarketing Agent in its remarketing of the Bonds,
the Trustee will furnish to the Remarketing Agent such certificates,
accountants' letters and opinions of counsel as the Remarketing Agent reasonably
requests. In addition, the Trustee at its own expense, will take all steps
reasonably requested by the Remarketing Agent that the Remarketing Agent or its
counsel may consider necessary or desirable to (a) register the sale of the
Bonds by the Remarketing Agent under any federal or state securities law or
qualify the Indenture under the Trust Indenture Act, or (b) enable the
Remarketing Agent to establish a "due diligence" defense to any action commenced
against the Remarketing Agent in respect of any disclosure document.
Section 6. Indemnification and Contribution. (a) Trustee will indemnify
and hold harmless the Remarketing Agent and each of its directors, officers and
employees and each person who controls the Remarketing Agent within the meaning
of Section 15 of the Securities Act, against any and all losses, claims, damages
or liabilities, joint or several, to which any such indemnified party may become
subject under any statute or at law or in equity or otherwise, and will
reimburse any such indemnified party for any reasonable legal or other expenses
incurred by it in connection with investigating any claims against it and
defending any actions, insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon (i) an allegation or determination that
the Bonds should have been registered under the Securities Act or the Indenture
should have been qualified under the Trust Indenture Act, or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
disclosure documents furnished pursuant to Section 5 hereof or the omission or
alleged omission to state therein a material fact necessary to make the
statements therein not misleading, but the Trustee will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made in the document in reliance upon and in
conformity with written information furnished to the Trustee by the Remarketing
Agent specifically
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for use in connection with the preparation of the documents. This indemnity
agreement will not limit any other liability to any such indemnified party the
Trustee otherwise may have; provided that in no event will the Trustee be
obligated for double indemnification.
(b) An indemnified party shall, promptly after receipt of notice of
the commencement of any action against such indemnified party in respect of
which indemnification may be sought against an indemnifying party, notify the
indemnifying party in writing of the commencement of the action. Failure of the
indemnified party to give such notice will not relieve the indemnifying party
from any liability it may have to such indemnified party. If such an action is
brought against an indemnified party and such indemnified party notifies the
indemnifying party of its commencement, the indemnifying party may, or if so
requested by such indemnified party will, participate in or assume its defense,
with counsel reasonably satisfactory to the indemnified party and, after notice
from the indemnifying party to such indemnified party of an election to assume
the defense, the indemnifying party will not be liable to the indemnified party
under this Section 6 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense other than reasonable costs
of investigation. Until the indemnifying party assumes the defense of any such
action at the request of such indemnified party, the indemnified party may
participate at its own expense in the defense of such action. If the
indemnifying party does not retain counsel to take charge of the defense or if
the indemnified party reasonably concludes that there may be defenses available
to it different from or in addition to those available to the indemnifying party
(in which case the indemnifying party will not have the right to assume the
defense of such action on behalf of such indemnified party), legal and other
expenses reasonably incurred by the indemnified party shall be borne by the
indemnifying party. Any obligation under this Section of an indemnifying party
to reimburse an indemnified party for expenses shall be payable in reasonable
amounts and at reasonable periodic intervals not more often than monthly as
required by the indemnified party, but if the indemnified party is later
determined not to be entitled to indemnification under this Section or
otherwise, the indemnified party will promptly return any moneys paid pursuant
to this sentence. No party will be liable with respect to any settlement
effected without its consent.
Section 7. Fees and Expenses. In connection with the remarketing of Bonds
for an Interest Period equal to or less than one year, the Trustee shall pay the
Remarketing Agent a reasonable remarketing fee acceptable to the Authority, the
Corporation and the Remarketing Agent.
In connection with the remarketing of Bonds for an Interest Period greater
than one year, the Trustee shall pay the Remarketing Agent a reasonable
remarketing fee mutually acceptable to the Authority, the Corporation and the
Remarketing Agent.
The Trustee will pay all expenses of delivering remarketed Bonds and
reimburse the Remarketing Agent for all direct, out-of-pocket expenses incurred
by it as Remarketing Agent, including reasonable counsel fees and disbursements.
Section 8. Representations, Warranties, Covenants and Agreements of the
Remarketing Agent. The Remarketing Agent, by its acceptance hereof, represents,
warrants and covenants and agrees with the Trustee as follows:
(a) the Remarketing Agent is a member of the National Association of
Securities Dealers and meets the requirements for the Remarketing Agent set
forth in the Indenture;
(b) the Remarketing Agent has been duly incorporated, is validly
existing and is in good standing under the laws of the Commonwealth of
Pennsylvania and is authorized by law to perform all the duties and obligations
imposed upon it as Remarketing Agent by this Agreement and the Indenture; and
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(c) the Remarketing Agent has full power and authority to take all
actions required or permitted to be taken by the Remarketing Agent by or under,
and to perform and observe the covenants and agreements on its part contained
in, this Agreement and the Indenture.
(d) the Remarketing Agent will perform and observe the covenants and
agreements on its part contained in this Agreement and the Indenture in
compliance with all applicable Federal and State laws.
Section 9. Representations, Warranties, Covenants and Agreements of the
Trustee. The Trustee, by its acceptance hereof, represents, warrants, covenants,
and agrees with the Remarketing Agent that it:
(a) in its individual capacity is a national banking association
duly organized and validly existing under the laws of the United States of
America;
(b) has full power and authority to take all actions required or
permitted to be taken by the Trustee by or under, and to perform and observe the
covenants and agreements on its part contained in, this Agreement and any other
instrument or agreement relating thereto to which the Trustee is a party; and
(c) has, on or before the date hereof, duly taken all action
necessary to be taken by it prior to such date to authorize (i) the execution,
delivery and performance of this Agreement, the Loan Agreement and any other
instrument or agreement to which the Trustee is a party and which has been or
will be executed in connection with the transactions contemplated by the
foregoing documents; and (ii) the carrying out, giving effect to, consummation
and performance of the transactions and obligations contemplated by the
foregoing agreements and by the Private Placement Memorandum.
Section 10. Term of Agreement. This Agreement shall become effective on
the date hereof and shall continue in full force and effect until the payment in
full of the Bonds or the earlier conversion of all Bonds to the Fixed Mode,
subject to the right of termination as provided herein.
Section 11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania.
Section 12. Dealing in Bonds by the Remarketing Agent. The Remarketing
Agent, in its individual capacity, may in good faith buy, sell, own, hold and
deal in any of the Bonds, including, without limitation, any Bonds offered and
sold by the Remarketing Agent pursuant to this Agreement, and may join in any
action which any Owner may be entitled to take with like effect as if it did not
act in any capacity hereunder. The Remarketing Agent, in its individual
capacity, either as principal or agent, may also engage in or be interested in
any financial or other transaction with the Trustee and may act as depositary,
trustee, or agent for any other obligations of the Trustee as freely as if it
did not act in any capacity hereunder.
Section 13. Intention of Parties. It is the express intention of the
parties hereto that any purchase, sale or transfer of any Bonds, as herein
provided, shall not constitute or be construed to be the extinguishment of any
Bonds or the indebtedness represented thereby or the reissuance of any Bonds.
Section 14. Miscellaneous. (a) Except as otherwise specifically provided
in this Agreement, all notices, demands and formal actions under this Agreement
shall be in writing and either (i) hand-delivered, (ii) sent by electronic
means, or (iii) mailed by registered or certified mail, return receipt
requested, postage prepaid, to:
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The Remarketing Agent:
RRZ PUBLIC MARKETS, INC.
000 Xxxxxxx Xxxxxx
3100 CNG Tower
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Authority:
Allegheny County Industrial Development Authority
000 Xxxx Xxxx Xxxxxxx
000 Xxxx Xxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Trustee and Paying Agent:
PNC Bank, National Association
Xxx Xxxxxx Xxxxx, 00xx Xxxxx
Corporate Trust Department
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Corporate Trust Manager
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Bank's Agent:
Xxxxxx Financial, Inc.
000 Xxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: HBC Portfolio Manager
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Corporation
Unitel Video, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: General Counsel
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The Remarketing Agent, the Trustee, the Authority, the Corporation, the Paying
Agent and the Agent may, by notice given under this Agreement, designate other
addresses to which subsequent notices, requests, reports or other communications
shall be directed.
(b) This Agreement shall inure to the benefit of and be binding only upon
the parties hereto and their respective successors and assigns. The terms
"successors" and "assigns" shall not include any purchaser of any of the
Bonds merely because of such purchase. Except asexpressly set forth
herein, neither the Bank's Agent nor any Owner or other third party shall
have any rights or privileges hereunder.
(c) All of the representations and warranties of the Trustee and the
Remarketing Agent in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf
of the Remarketing Agent or the Trustee, (ii) the offering and sale of and
any payment for any Bonds hereunder or (iii) termination or cancellation
of this Agreement.
(d) This Agreement and each provision hereof may be amended, changed,
waived, discharged or terminated only by an instrument in writing signed
by the parties hereto.
(e) Nothing herein shall be construed to make any party an employee of the
other or to establish any fiduciary relationship between the parties
except as expressly provided herein.
(f) If any provision of this Agreement shall be held or deemed to be or
shall, in fact, be invalid, inoperative or unenforceable for any reason,
such circumstances shall not have the effect of rendering any other
provision or provisions of this Agreement invalid, inoperative or
unenforceable to any extent whatsoever.
(g) This Agreement may be executed in several counterparts, each of which
shall be regarded as an original and all of which shall constitute one and
the same document.
[INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
ALLEGHENY COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
RRZ PUBLIC MARKETS, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxx, III
-----------------------------------
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
UNITEL VIDEO, INC.
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
