EXHIBIT 10.1
FIRST AMENDMENT TO
This FIRST AMENDMENT (the "AMENDMENT") is made as of August 28, 2002,
by and among Xxx Communications, Inc., a Delaware corporation (the "COMPANY"),
Cox RHINOS Trust, a Delaware statutory business trust (the "TRUST"), and Banc
of America Securities LLC, as remarketing agent (the "REMARKETING AGENT").
WITNESSETH:
WHEREAS, the Company, the Trust and the Remarketing Agent are parties
to a dated as of October 6, 1999 (the "");
WHEREAS, the parties hereto desire to amend the as set forth herein;
WHEREAS, the provides for amendment of its
terms, subject to satisfaction of certain requirements, including the consent
of all the holders of the Preferred Securities;
WHEREAS, the Intrepid Master Funding Trust, as Holder of all of
Preferred Securities (the "HOLDER"), desires to execute and deliver to the
Company its consent to this Amendment; and
WHEREAS, all things necessary to make this Amendment a valid amendment
and agreement according to its terms have been done;
NOW THEREFORE, in consideration of their mutual covenants contained
herein, the parties hereto, intending to be legally bound, hereby mutually
covenant and agree, and the Holder consents, as follows:
ARTICLE 1
AMENDMENTS
SECTION 1.01. Definitions. (a) Capitalized terms used and not
defined in this Amendment shall have the meanings assigned to them in the
.
(b) The definition of Remarketing Settlement Date in Section 1 of
the is hereby superseded in its entirety by the
following:
"REMARKETING PRICE" means (i) with respect to the Preferred
Securities, a price equal to the sum of (A) 100.00% of the aggregate
outstanding Liquidation Amount of the Preferred Securities, plus (B)
accrued and unpaid Distributions thereon (plus any Additional
Distributions) (if any), to and including the Remarketing Settlement
Date on which Replacement Securities are issued and (ii) with respect
to the Senior Notes, a price equal to the sum of (A) 100.00% of the
aggregate outstanding principal amount of the Senior Notes, plus (B)
accrued and unpaid interest thereon (plus any Additional Interest) (if
any), to and including the Remarketing Settlement Date on which
Replacement Securities are issued.
"REMARKETING SETTLEMENT DATE" means the Business Day
immediately following the Reset Date.
(c) The definitions of "Expected Reset Date", "Final Reset Date",
"Renewed Remarketing", "Trigger Event" and "Trigger Price" in Section 1 of the
are hereby deleted.
SECTION 1.02. Amendment of Representations and Warranties. (a) The
phrase "following a Trigger Event" in the first sentence of Section 2(b)(i) of
the is hereby deleted.
SECTION 1.03. Amendment of Remarketing Provisions. (a) Sections
5(a) and (b) of the are hereby superseded in their
entirety by the following:
(a) On October 1, 2002, if the Preferred Securities (or
the Senior Notes) remain outstanding, the Holders of a Majority in
Liquidation Amount of the Trust Securities (or, if applicable, the
holders of a majority in principal amount of the Senior Notes), acting
together as a single class (the "REQUESTING HOLDERS"), will have a the
right to require remarketing of the Preferred Securities
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(or, if applicable, the Senior Notes). The Requesting Holders may
exercise this right by delivering a written notice prior to 5:00 p.m.,
New York City time, on such date to the Remarketing Agent. Upon the
receipt of such notice, the Remarking Agent shall immediately deliver
a written notice to the Company on behalf of the Requesting Holders
(the "REMARKETING NOTICE"). If the Requesting Holders exercise their
right to require the remarketing of the Preferred Securities (or, if
applicable, the Senior Notes), the Reset Date shall be October 3,
2002.
(b) The Company shall, by notice to the Remarketing
Agent no later than 5:00 p.m., New York City time, on October 2, 2002,
select and specify three Reference Corporate Dealers. The Remarketing
Agent shall request Bids from such Reference Corporate Dealers by 3:00
p.m., New York City time, on the Reset Date. The Remarketing Agent or
an Affiliate or Associated Person thereof (any such person, an
"AFFILIATED BIDDER") may, at its option, enter a Bid. The Remarketing
Agent shall disclose to the Company the Bids obtained and determine
the lowest Bid Rate (the "WINNING BID RATE") from among the Bids
obtained on the Reset Date. By approximately 4:30 p.m., New York City
time, on the Reset Date, the Remarketing Agent shall notify the
Company and the Trustee of the Winning Bid Rate. If on a Reset Date,
Bids are not submitted by at least two Reference Corporate Dealers, or
if the lowest Bid submitted would result in a Winning Bid Rate in
excess of the rate permitted by applicable law, the Remarketing shall
be deemed to be a Failed Remarketing on such date. The Winning Bid
Rate determined by the Remarketing Agent, absent manifest error, shall
be binding and conclusive upon the Holders of the Trust Securities,
the holders of the Senior Notes, the Company and the Trust.
SECTION 1.04. Deletion of No Purchase of Securities, Renewed
Remarketing, Remarketing Fee and Trigger Price Sections. Sections 3(a)(vi), 8,
9 and 10 of the Remarketing Agreement are hereby deleted in their entirety.
SECTION 1.05. Amendment of Offering Memorandum Provision. Section
13 of the Remarketing Agreement is hereby superseded in its entirety by the
following:
SECTION 13. Offering Memorandum. By 11:00 a.m. (New
York City time) one Business Day preceding the Reset Date, the Company
shall furnish an offering memorandum (the
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"OFFERING MEMORANDUM") to the Remarketing Agent, in form and substance
reasonably satisfactory to the Remarketing Agent, to be used in the
remarketing by the Secondary Purchaser or purchasers under the
Secondary Purchase Agreement, and shall pay all expenses relating to
the preparation and furnishing of such Offering Memorandum.
ARTICLE 2
CONSENT OF HOLDERS OF PREFERRED SECURITIES
SECTION 2.01. Consent of the Holders of the Preferred Securities.
The Holder hereby unconditionally consents, accepts and agrees to all aspects
of this Amendment.
ARTICLE 3
MISCELLANEOUS
SECTION 3.01. Governing Law. This Amendment and the rights of the
parties hereunder shall be governed by and construed in accordance with the
laws of the State of New York and all rights and remedies shall be governed by
such laws, without reference to the choice of laws rules thereof.
SECTION 3.02. Representations of the Company. The Company and the
Trust, on the one hand, and the Remarketing Agent, on the other hand, represent
and warrant that the representations and warranties set forth in Section 2(a)
of the Remarketing Agreement, as amended, will be true on and as of the date
hereof. The Company and the Trust hereby represent and warrant that the
representations and warranties set forth in Section 2(b) of the Remarketing
Agreement, as amended, will be true on and as of the date hereof.
SECTION 3.03. Severability. If any provision in this Amendment
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 3.04. Counterparts. The parties may sign any number of
copies of this Amendment. Each signed copy shall be an original, but all of
them together represent the same agreement. Any signed copy shall be sufficient
proof of this Amendment.
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SECTION 3.05. Ratification of Remarketing Agreement; Amendment
Controls. The Remarketing Agreement, as amended by this Amendment, is in all
respects ratified and confirmed, and this Amendment shall be deemed part of the
Remarketing Agreement. The provisions of this Amendment shall supersede the
provisions of the Remarketing Agreement to the extent the Remarketing Agreement
is inconsistent herewith.
SECTION 3.06. Notices. Pursuant to Section 25 of the Remarketing
Agreement, the Company and the Trust hereby specify in writing to the
Remarketing Agent that all notices, requests, consents or other communications
shall be addressed to Attention: Xxxxx X. Xxxxx (rather than Xxxxxx X. Xxxxxxx)
and that in all other respects their addresses remain unchanged.
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IN WITNESS WHEREOF, each of Company, the Trust and the Remarketing
Agent has caused this Amendment to the Remarketing Agreement to be executed in
its name and on its behalf by one of its duly authorized officers as of the
date first above written.
XXX COMMUNICATIONS INC.
By: /s/ Xxxxx X. Xxxxx
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Title: Executive Vice President,
Finance and Administration
and Chief Financial Officer
COX RHINOS TRUST
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, not in his individual
capacity but solely as Administrative
Trustee of the Trust
Confirmed and Accepted as
of the date hereof:
BANC OF AMERICA
SECURITIES LLC, not individually,
but solely as Remarketing Agent
By: /s/ Xxxxxx Xxxxxxx
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Title: Managing Director
Consented to, accepted and agreed:
INTREPID FUNDING MASTER TRUST,
as the Holder of the Preferred Securities
By: Wilmington Trust Company, not in its
individual capacity, but solely as
Owner Trustee
By:/s/ Xxxx Xxx Xxxxxxx
-----------------------------------------
Title: Senior Financial Services Officer
