Exhibit 4.11
, dated as of July 14, 2000 (this "Agreement"),
---------
among (i) Radio One, Inc., a Delaware corporation (the "Company"), (ii) American
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Stock Transfer & Trust Co., as Tender Agent and (iii) Credit Suisse First Boston
Corporation, a Massachusetts corporation (together with its successors and
assigns, the "Remarketing Agent").
-----------------
RECITALS
WHEREAS the Company is issuing on today's date or has heretofore
issued $260,000,000 (or up to $310,000,000 to the extent the option granted by
the Company is exercised in full) aggregate Liquidation Amount (as defined
below) of 6 1/2% Convertible Preferred Securities Remarketable Term Income
Deferrable Equity Securities (HIGH TIDES)(SM) (the "HIGH TIDES");
----------
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. (a) The following terms shall have the meanings
------------
indicated below:
"Broker-Dealer" has the meaning assigned to such term in Section 5.
-------------
"Broker-Dealer Agreement" means an agreement between the Remarketing
-----------------------
Agent and a Broker-Dealer.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
------------
day on which banking institutions in the City of New York are authorized or
required by law or executive order to remain closed, or (c) a day on which the
Remarketing Agent is closed for business.
"Cause" means any one of the following events or circumstances shall
-----
have occurred and be continuing: (i) the bankruptcy or insolvency of the
Remarketing Agent; or (ii) the Remarketing Agent shall cease to be registered as
a broker-dealer under the Exchange Act.
"Certificate of Designations" means the certificate of designation,
---------------------------
filed by the Company with the Secretary of State of the State of Delaware,
setting forth the rights and preferences of the HIGH TIDES.
"Class D Common Stock" has the meaning assigned to such term in the
--------------------
Certificate of Designations.
"Closing Price" means for any security on any day the last reported
-------------
sale price of the security on that day, or in case no sale takes place on that
day, the average of the closing bid and asked prices in each case on the
principal national securities exchange on which the securities are listed or
admitted to
trading on any national securities exchange, on the National Market System of
the National Association of Securities Dealers, Inc. or any successor national
automated interdealer quotation system (the "NNM") or, if the securities are not
listed or admitted to trading on any national securities exchange or quoted on
the NNM, the average of the closing bid and asked prices of the security in the
over-the-counter market as furnished by any New York Stock Exchange member firm
selected by the Company for that purpose.
"Commission" means the Securities and Exchange Commission or any
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successor thereto.
"Company" has the meaning assigned to such term in the preamble to
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this Agreement.
"Comparable Treasury Issue" means the United States Treasury security
-------------------------
selected by the Quotation Agent that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues of
corporate debt securities.
"Comparable Treasury Price" means (A) the arithmetic mean of five
-------------------------
Reference Treasury Dealer Quotations for the reset date, after excluding the
highest and lowest such Reference Treasury Dealer Quotations, or (B) if the
Quotation Agent obtains fewer than five such Reference Treasury Dealer
Quotations, the arithmetic mean of all such Reference Treasury Dealer
Quotations.
"Convertible Remarketing" has the meaning specified in Section 2(d).
-----------------------
"Disclosure Documents" means the Registration Statement, or if the
---------------------
Registration Statement is not required to be filed with the Commission pursuant
to Section 2(b), the Nonregistered Offering Documents, including any preliminary
offering document or Preliminary Prospectus, as applicable, and as each may be
amended or supplemented, and in each case, including any information
incorporated by reference therein.
"Dividend" has the meaning assigned to such term in the Certificate of
--------
Designations.
"Effective Time" means the date and time as of which the Registration
--------------
Statement or its most recent post-effective amendment is declared effective by
the Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
------------
from time to time, and the rules and regulations promulgated thereunder.
"Exchange Act Reports" means any annual or other reports of the
--------------------
Company filed with the Commission or sent to holders of their securities, in
each case pursuant to the Exchange Act.
"Failed Remarketing" means an Initial Failed Remarketing or a Final
------------------
Failed Remarketing.
2
"Final Failed Remarketing" has the meaning specified in Section 2(d).
------------------------
"Final Remarketing" has the meaning specified in Section 2(d).
-----------------
"Final Remarketing Period" means the period beginning on the Business
------------------------
Day immediately following the Initial Remarketing Termination Date and ending on
the day which is ten (10) Business Days (or such shorter period as shall be
agreed to by the Remarketing Agent) after the Initial Remarketing Termination
Date.
"Final Reset Date" means July 15, 2005.
----------------
"Global Security Certificate" means the "Firm Global Securities" or
---------------------------
any "Optional Global Security", as such terms are defined in the Purchase
Agreement.
"HIGH TIDES" has the meaning assigned to such term in the recitals to
----------
this Agreement.
"Initial Failed Remarketing" has the meaning specified in Section
--------------------------
2(d).
"Initial Remarketing" has the meaning specified in Section 2(d).
-------------------
"Initial Remarketing Period" means the period beginning on the first
--------------------------
Business Day immediately following the Tender Notification Date and ending on
the day which is ten (10) Business Days (or such shorter period as shall be
agreed to by the Remarketing Agent) after the Tender Notification Date.
"Initial Remarketing Termination Date" means the tenth (10) Business
------------------------------------
Day following the Tender Notification Date (or such shorter period as shall be
agreed to by the Remarketing Agent).
"Liquidation Amount" means, with respect to a HIGH TIDES, its stated
------------------
liquidation amount of $1,000.
"Market Event" means the occurrence of (i) a change in U.S. or inter-
------------
national financial, political or economic conditions or currency exchange rates
or exchange controls as would, in the sole judgment of the Remarketing Agent, be
likely to prejudice materially the success of the Remarketing, issue, sale or
distribution of the Subject Securities, or (ii) (A) any change, or any
development or event involving a prospective change, in the condition (financial
or other), business, properties or results of operations of the Company and its
subsidiaries taken as a whole which, in the sole judgment of the Remarketing
Agent, is material and adverse and makes it impractical or inadvisable to
proceed with completion of the Remarketing or the sale of and payment for the
Subject Securities; (B) any downgrading in the rating of any debt securities of
the Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (C) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any
3
setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the over-the-
counter market; (D) any banking moratorium declared by U.S. Federal or New York
authorities; or (E) any outbreak or escalation of major hostilities in which
the United States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the sole
judgment of the Remarketing Agent, the effect of any of the events specified in
(B), (C), (D) or (E) makes it impractical or inadvisable to proceed with
completion of the Remarketing or the sale of and payment for the Subject
Securities.
"Maximum Rate" means a rate equal to the 30-Year Treasury Rate plus 6%
------------
per annum.
"No Registration Opinion" means an opinion of Securities Counsel that
-----------------------
the securities issuable in the Remarketing do not need to be registered under
the Securities Act and that no other filing of any kind is required to be made
with the Commission as a condition to the sale of such securities, which No
Registration Opinion shall be reasonably satisfactory to the Remarketing Agent
and its counsel.
"Nonconvertible Remarketing" has the meaning specified in Section
--------------------------
2(d).
"Nonregistered Offering Documents" has the meaning specified in
--------------------------------
Section 6(a).
"Offering Circular" means the Confidential Offering Circular dated as
-----------------
of July 10, 2000, prepared by the Company in connection with the Offering of the
HIGH TIDES.
"Par Amount" means $1,000 per Subject Security.
----------
"Paying Agent" means American Stock Transfer & Trust Co.
------------
"Preliminary Prospectus" means each prospectus included in the
----------------------
Registration Statement, or amendment thereof, before it becomes effective under
the Securities Act and any prospectus which may be filed by the Company with the
Commission pursuant to Rule 424(a) (or any successor applicable rule) of the
rules and regulations under the Securities Act (the "Rules and Regulations") in
---------------------
connection with the Registration Statement.
"Primary Treasury Dealer" has the meaning specified in the definition
-----------------------
of Quotation Agent in this Section 1.
"Prospectus" means the final prospectus which will be filed with the
----------
Commission pursuant to Rule 424(b) (or any successor applicable rule) of the
Rules and Regulations and deemed to be a part of the Registration Statement at
the time of its effectiveness under the Securities Act pursuant to paragraph (b)
of Rule 430A (or any successor applicable rule) of the Rules and Regulations.
"Purchase Agreement" means the Purchase Agreement dated as of July 10,
------------------
2000 by and among the Company and the Purchasers named therein.
4
"Quotation Agent" means Credit Suisse First Boston Corporation and its
---------------
successors; provided, however, that if Credit Suisse First Boston Corporation
-------- -------
shall cease to be a primary United States Government securities dealer in The
City of New York (a "Primary Treasury Dealer"), the Company shall substitute
-----------------------
therefor another Primary Treasury Dealer.
"Reference Treasury Dealer" means (i) the Quotation Agent and (ii) any
-------------------------
other Primary Treasury Dealer selected by the Remarketing Agent after
consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
------------------------------------
Reference Treasury Dealer, the arithmetic mean, as determined by the Remarketing
Agent of the bid and asked prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) quoted in writing to the
Remarketing Agent by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third Business Day preceding the Reset Date.
"Registration Statement" means a registration statement covering the
----------------------
securities to be issued in the Remarketing filed with the Commission pursuant to
the Securities Act, including any amendments thereto and any document or other
information incorporated by reference therein.
"Remarketing" has the meaning specified in Section 2(b).
-----------
"Remarketing Agent" has the meaning assigned to such term in the
-----------------
preamble to this Agreement and, upon the appointment of a successor Remarketing
Agent in accordance with Section 10, shall mean such successor Remarketing
Agent.
"Remarketing Conditions" means the following factors: (i) short-term
----------------------
and long-term market interest rates and indices of such short-term and long-term
interest rates, (ii) market supply and demand for short-term and long-term
securities, (iii) yield curves for short-term and long-term securities
comparable to the Subject Securities, (iv) industry and financial conditions
which may affect the Subject Securities, (v) the number of Subject Securities to
be remarketed, (vi) the number of potential purchasers, (vii) the current
ratings by nationally recognized statistical rating organizations of debt of the
Company, (viii) the number of shares of Class D Common Stock, if any, into which
the Subject Securities will be convertible and (ix) the length and type of call
protections, if any.
"Remarketing Notice" has the meaning specified in Section 2(d).
------------------
"Reset Date" means any date (1) not later than the Final Reset Date,
----------
or, if such date is not a Business Day, the next succeeding Business Day and (2)
not earlier than 80 Business Days prior to the Final Reset Date, as may be
determined by the Remarketing Agent, in its sole discretion, for settlement of a
successful Remarketing.
"Rules and Regulations" has the meaning specified in the definition of
---------------------
Preliminary Prospectus in this Section 1.
5
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time, and the rules and regulations promulgated thereunder.
"Securities Counsel" means counsel experienced in matters relating to
------------------
securities law.
"Subject Securities" means the HIGH TIDES.
------------------
"Tender Agent" means American Stock Transfer & Trust Co.
------------
"Tender Notification Date" means a Business Day no earlier than ten
------------------------
(10) Business Days following the date of the Remarketing Notice (or such shorter
period as shall be agreed to by the Remarketing Agent).
"Term Call Protections" has the meaning assigned to such term in
---------------------
Section 2(c).
"Term Conversion Ratio" has the meaning assigned to such term in
---------------------
Section 2(c).
"Term Conversion Price" has the meaning assigned to such term in
---------------------
Section 2(c).
"Term Provisions" has the meaning specified in Section 2(c).
----------------
"Term Rate" has the meaning assigned to such term in Section 2(c).
----------
"30-Year Treasury Rate" means (i) the yield, under the heading
----------------------
which represents the average for the week immediately prior to the date of
calculation, appearing in the most recently published statistical release
designated H.15(519) or any successor publication which is published weekly by
the Federal Reserve and which establishes yields on actively traded United
States Treasury securities for the 30 year treasury bonds (or if 30 year
treasury bonds are no longer issued, the longest maturity treasury bond then
being issued) or (ii) if such release (or any successor release) is not
published during the week preceding the calculation date or does not contain
such yields, the rate per annum equal to the semiannual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for the Reset Date. The 30-Year Treasury
Rate shall be calculated by the Remarketing Agent on the third Business Day
preceding the Reset Date.
2. Acceptance and Performance of Duties. The Remarketing Agent, the
-------------------------------------
Company and the Tender Agent agree as follows:
(a) The Remarketing Agent will perform the duties and obligations of
Remarketing Agent in connection with the Subject Securities as specified in this
Agreement in good faith and in compliance with the provisions of applicable
laws.
6
(b) The Remarketing Agent will use its best efforts to remarket all
Subject Securities tendered or deemed tendered for sale in accordance with the
terms and provisions of this Agreement (the "Remarketing"); provided, however,
----------- -------- -------
that the Remarketing Agent will not be obligated to attempt to remarket such
Subject Securities, or to determine the Term Rate pursuant to Section 2(c)
below, if (A) in the Remarketing Agent's judgment any (i) Disclosure Document
provided by the Company in connection with the Remarketing or (ii) document
publicly disclosed (including in a filing pursuant to the Exchange Act) by or on
behalf of the Company, includes any untrue statement of a material fact or omits
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, unless
the Remarketing Agent is satisfied in its sole discretion that such statement or
omission has been properly corrected, (B) unless the Company provides a No
Registration Opinion to the Remarketing Agent prior to the Tender Notification
Date, the Company shall have failed to have the Registration Statement declared
effective by the Commission on or prior to the Tender Notification Date and
remain effective at least through and including the Reset Date, provided that
--------
the Registration Statement may be declared effective later than the Tender
Notification Date if the Company provides an opinion of Securities Counsel to
the Remarketing Agent to the effect that such Registration Statement need not
become effective until the date the Initial Remarketing Period is required to
commence and the Remarketing Agent consents to such delay or (C) the Company
fails to comply with the requirements set forth in Section 6(c) of this
Agreement. The Remarketing Agent may, but except as provided in Section 11
shall not be obligated to, purchase tendered Subject Securities for its own
account.
(c) The Remarketing Agent has agreed to use its best efforts to
remarket all Subject Securities tendered for Remarketing on the Tender
Notification Date. The Remarketing Agent will establish, effective beginning on
the Reset Date, (i) the rate (the "Term Rate") per annum at which Dividends will
---------
accrue on the Subject Securities, (ii) the term conversion ratio and price,
which determine the number of shares of Class D Common Stock, if any, into which
each Subject Security may be converted (respectively, the "Term Conversion
---------------
Ratio" and the "Term Conversion Price") and (iii) the price, manner and time, if
----- ---------------------
any, at which the Subject Securities may be redeemed (the "Term Call
---------
Protections" and together with the Term Rate, Term Conversion Ratio and Term
-----------
Conversion Price, the "Term Provisions"). The Remarketing Agent will use its
---------------
best efforts to establish the Term Provisions most favorable to the Company
consistent with the successful remarketing of Subject Securities tendered
therefor at a price equal to 101% of the aggregate Par Amount thereof; provided
--------
that each Subject Security will have the same Term Provisions; provided that the
--------
Term Provisions may not permit the Company to redeem the Subject Securities for
a price less than the aggregate Par Amount thereof plus any accrued and unpaid
Dividends thereon; and, provided further, that if no Subject Security is
----------------
tendered for remarketing on the Tender Notification Date, the Remarketing will
not take place (although the Remarketing will not be deemed to have failed), and
the Remarketing Agent will set the Term Provisions in a manner consistent with
the Remarketing Notice that it believes, in its sole discretion, would result in
a price per Subject Security equal to 101% of its Par Amount.
(d) The remarketing process will commence on the first Business Day
following the Tender Notification Date and will be conducted on the following
schedule and in the following manner:
7
At least 30 Business Days, but not The Company shall cause a notice (the
more than 90 Business Days prior to "Remarketing Notice") to be sent to
the Final Reset Date: ------------------
holders of the Subject Securities and
the Tender Agent stating whether it
intends to remarket the Subject
Securities as securities which will
be convertible into Class D Common
Stock of the Company (a "Convertible
-----------
Remarketing") or which will be
-----------
nonconvertible (a "Nonconvertible
--------------
Remarketing").
-----------
The date of the Remarketing Notice Each outstanding Subject Security shall
through the Tender Notification Date: be deemed to have been tendered for
remarketing unless the holder thereof
has given irrevocable notice to the
contrary to the Tender Agent (which the
Tender Agent will promptly remit to the
Remarketing Agent). Such irrevocable
notice, which may be telephonic or
written (provided that if such notice is
provided telephonically, the holder must
provide promptly thereafter written
confirmation of such irrevocable notice
to the Tender Agent), must be delivered
prior to 5:00 p.m., New York City time,
on the Tender Notification Date. A
holder's notice of an election to retain
Subject Securities must state the number
of Subject Securities to be retained
(which must be all of the Subject
Securities represented by the applicable
certificate, unless such certificate is
a Global Security Certificate), the
number of the certificate representing
the Subject Securities not to be deemed
to have been so tendered and the number
of Subject Securities represented by
such certificate. Any transferee of a
Subject Security for which such notice
has been provided shall be bound
thereby. The failure by a holder of
Subject Securities to give timely notice
of an election to retain all (or, in the
case of a Global Security Certificate,
any part) of such holder's Subject
Securities will constitute the
irrevocable tender for sale in the
Remarketing of all the Subject
Securities it holds. A holder of Subject
Securities which has not duly given
notice that it will not tender and
retain its Subject Securities will cease
to have any further rights with respect
to such Subject Securities upon the
successful remarketing thereof, except
the
8
right of such holder to receive an
amount equal to (i) from the
proceeds of the Remarketing, 101% of
the aggregate liquidation amount
thereof, plus (ii) from the Company,
any accrued and unpaid Dividends
thereon to (but excluding) the Reset
Date.
Beginning the first Business Day If any Subject Securities are
following the Tender Notification tendered for remarketing, the
Date: Remarketing Agent will commence a
Convertible Remarketing or a
Nonconvertible Remarketing, as the
case may be (in either case, an
"Initial Remarketing"), in
-------------------
accordance with the terms of this
Agreement and pursuant to the
instructions set forth in the
Remarketing Notice. The Remarketing
Agent will determine, and upon
request make available to interested
persons, nonbinding indications of
the Term Provisions based upon
then-current Remarketing Conditions.
The Remarketing Agent will solicit
and receive orders from prospective
investors to purchase tendered
Subject Securities. The Initial
Remarketing shall be deemed to have
failed (an "Initial Failed
--------------
Remarketing") if (i) despite using
-----------
its best efforts, the Remarketing
Agent is unable to establish, prior
to the Initial Remarketing
Termination Date, a Term Rate which
is less than or equal to the Maximum
Rate, (ii) the Remarketing Agent is
excused from Remarketing the Subject
Securities because of (a) the
failure by the Company to satisfy a
condition in this Agreement or (b)
the occurrence of a Market Event,
(iii) there is no Remarketing Agent
on the first day of the Initial
Remarketing Period, or (iv) prior to
the Initial Remarketing Termination
Date, Term Provisions are
established by the Remarketing
Agent, but the Remarketing Agent is
unable to consummate the sale of one
or more of the Subject Securities
tendered for remarketing because of
the occurrence of a Market Event.
Remainder of the Initial Remarketing The Remarketing Agent will continue,
Period: if necessary, using its best efforts
to remarket the Subject Securities
tendered for remarketing as described
above, adjusting the non-binding
indications of the Term
9
Provisions necessary to establish
the Term Provisions most favorable
to the Company consistent with
remarketing all Subject Securities
tendered therefor at 101% of the Par
Amount, until the Initial
Remarketing is completed or is
deemed to have failed. See the
definition of an Initial Failed
Remarketing above. Promptly upon
determination of the Term
Provisions, the Remarketing Agent
will communicate such Term
Provisions to the Tender Agent,
which will communicate such Term
Provisions to the Paying Agent, the
Company and each holder (if any)
which timely elected not to tender
all of its Subject Securities for
remarketing, by delivery of a
written notice or by telephone
promptly confirmed by telecopy or
writing.
Beginning the first Business Day If the Initial Remarketing fails
following an Initial Failed because the Remarketing Agent (i) was
Remarketing (if applicable): not able to establish a Term Rate
less than or equal to the Maximum
Rate or (ii) having set Term
Provisions prior to the reset date,
was unable to sell one or more
Subject Securities tendered for
remarketing because of the occurrence
of a Market Event, the Remarketing
Agent will commence a second
remarketing (the "Final Remarketing")
-----------------
during the period beginning on the
Business Day following the Initial
Remarketing Termination Date and
ending on the date which is 10
Business Days later, or shorter
period as shall be agreed to by the
Remarketing Agent, which will be a
Convertible Remarketing if the
Initial Remarketing was a Non-
convertible Remarketing and a Noncon-
vertible Remarketing if the Initial
Remarketing was a Convertible
Remarketing. The Remarketing Agent
will determine, and upon request make
available to interested persons,
nonbinding indications of the Term
Provisions based upon then-current
Remarketing Conditions. The
Remarketing Agent will solicit and
receive orders from prospective
investors to purchase tendered
Subject Securities. The Final
Remarketing will be deemed to have
failed (a "Final Failed Remarketing")
------------------------
if (i) despite using its best
10
efforts, the Remarketing Agent is
still not able to establish a Term
Rate less than or equal to the
Maximum Rate prior to the expiration
of the Final Remarketing Period,
(ii) the Remarketing Agent is
excused from Remarketing the Subject
Securities because of (a) the
failure by the Company to satisfy a
condition in this Agreement or (b)
the occurrence of a Market Event or
(iii) Term Provisions are
established by the Remarketing
Agent, but the Remarketing Agent is
unable to consummate the sale of one
or more of the Subject Securities
tendered for remarketing because of
the occurrence of a Market Event.
Remainder of the Final Remarketing The Remarketing Agent will continue,
Period (if applicable): if necessary, to use its best
efforts to remarket the Subject
Securities, as described above,
adjusting the non-binding
indications of the Term Provisions
as necessary to establish the Term
Provisions most favorable to the
Company consistent with remarketing
all Subject Securities tendered
therefor at 101% of the Par Amount
until the Final Remarketing is
completed or is deemed to have
failed. See the definition of a
Final Failed Remarketing above. If
the Remarketing Agent is able to
establish a Term Rate less than or
equal to the Maximum Rate during the
Final Remarketing Period, it will
promptly communicate such Term
Provisions to the Tender Agent,
which will communicate such Term
Provisions to the Paying Agent, the
Company and each holder (if any)
which timely elected not to tender
all of its Subject Securities for
remarketing, by delivery of a
written notice or by telephone
promptly confirmed by telecopy or
writing.
Reset Date: New holders must deliver the purchase
price for the remarketed securities
in same-day funds to the Remarketing
Agent and the Remarketing Agent will
deliver such purchase price to the
Tender Agent (in like funds).
Settlement of transactions in
connection with the remarketing will
take place on the Reset Date, or
such date as the
11
Remarketing Agent may, in its sole
discretion, determine, or as
otherwise required by applicable law.
Payments to tendering holders who
hold Subject Securities in the form
of one or more Global Security
Certificates will be made in the
manner provided in the Offering
Circular under "Description of HIGH
TIDES--Form, Book-Entry Procedures
and Transfer." Tendering holders
who hold Subject Securities in
certificated form (other than in
the form of Global Security
Certificates) must deliver their
certificates properly endorsed
for transfer to the Tender Agent by
2:30 p.m. New York City time on the
Reset Date (or any succeeding date)
to receive payment of the purchase
price for their Subject Securities.
Subject to compliance with the
preceding two sentences, the Tender
Agent will pay former holders the
proceeds of the Remarketing of their
Subject Securities by the
Remarketing Agent. In the event of
a Final Failed Remarketing, the Term
Rate shall be a rate equal to the
30-Year Treasury Rate plus 6% per
annum, the Term Conversion Price
will be equal to 105% of the average
Closing Price of the Company's Class
D Common Stock for the five (5)
consecutive trading days after the
Final Remarketing Period, and the
Remarketing Agent shall set any
other terms not provided for herein
upon a Final Failed Remarketing.
In the event of a Final Failed
Remarketing, all outstanding Subject
Securities will be redeemable by the
Company, in whole or in part, at any
time on or after the third
anniversary of the Reset Date at a
redemption price equal to 100% of
the aggregate liquidation amount,
plus accrued and unpaid Dividends,
thereon. On and after the Reset
Date, the terms of all Subject
Securities, whether or not tendered
for remarketing, will be modified by
the Term Provisions, as the same
shall be established by the
Remarketing Agent. If the Subject
Securities are not held by The
Depository Trust Company or its
nominee in the form of one or more
Global Security Certificates,
certificates representing
12
remarketed Subject Securities will be
issued to the purchasers thereof,
irrespective of whether the
certificates formerly representing
such Subject Securities have been
delivered to the Tender Agent.
3. Representations, Warranties, Covenants and Agreements of the
------------------------------------------------------------
Company and the Remarketing Agent. (a) The Company represents, warrants,
----------------------------------
covenants and agrees with the Remarketing Agent as follows:
(i) the Company has full power and authority to enter into this
Agreement and will have full power and authority to enter into any
agreements which it may enter into in connection with the Remarketing; this
Agreement and the transactions contemplated hereby have been, and each
other such agreement and the transactions contemplated thereby will be,
duly authorized, executed and delivered by the Company; and this Agreement
is, and each such other agreement will be at the Reset Date, a valid and
binding obligation of the Company, enforceable against the Company, as
applicable, in accordance with its terms;
(ii) the consummation of the transactions contemplated herein do not
now, and the consummation of the transactions contemplated in any other
agreement entered into by the Company in connection with the Remarketing
will not, at the Reset Date, conflict with or constitute a breach of, or a
default under, or result in the creation or imposition of any lien, charge
or other encumbrance upon any property or assets of the Company or any of
the Company's subsidiaries pursuant to any contract, indenture, declaration
of trust, deed of trust, mortgage, loan agreement, note, lease or other
instrument or agreement to which the Company or any of its subsidiaries is
or will be a party or by which it or any of them may be bound, or to which
any of the property or assets of any of them is or will be subject, nor
will such actions result in any violation of the provisions of the
certificate of incorporation, the by-laws or other organizational document
of the Company or any of its subsidiaries or any statute (including the
Securities Act, the Exchange Act and state securities laws) or any order,
rule or regulation of any court or governmental agency or body (including
the Commission) which has or will have jurisdiction over the Company or any
of its subsidiaries or any of their material property or assets except for
a conflict, breach, default, lien, charge or encumbrance which could not
reasonably be expected to have a material adverse effect on the
consummation of the transactions contemplated herein or therein;
(iii) all required consents, rulings and approvals of governmental
authorities (other than "Blue Sky" authorities) required in connection with
the execution and delivery by the Company of this Agreement and any
agreement entered into by the Company in connection with the transactions
contemplated by any Disclosure Documents, and the performance by the
Company of its obligations hereunder and thereunder, have been obtained and
are in full force and effect and, at the Reset Date, will have been
obtained and be in full force and effect;
13
(iv) except as disclosed in the Disclosure Documents, neither the
Company nor any of its subsidiaries is or, at the Reset Date, will be (i)
in violation of its certificate of incorporation, by-laws or other
organizational document, (ii) in default in any respect, and no event has
occurred or will have occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any contract, indenture,
declaration of trust, deed of trust, mortgage, loan agreement, note, lease
or other instrument or agreement to which it is or will be bound or to
which any of its properties or assets is or will be subject or (iii) in
violation of any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets may be subject;
(v) the Disclosure Documents, including as provided in Section 3(x),
will not, at the Effective Time and thereafter through and including the
Reset Date, contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided that no representation,
--------
warranty or agreement is made as to information contained in or omitted
from the Disclosure Documents in reliance upon and in conformity with
written information furnished to the Company by the Remarketing Agent
specifically for inclusion therein;
(vi) the financial statements of the Company contained (or
incorporated by reference) in the Disclosure Documents will present fairly
the financial position of the Company as of the dates indicated, and the
results of operations and changes in financial position of the Company for
the periods covered, in conformity with generally accepted accounting
principles applied on a consistent basis, except as otherwise set forth
therein;
(vii) after the date of the most recent financial statements of the
Company contained (or incorporated by reference) in the Disclosure
Documents, there will not have been any material adverse change in the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole, except as
disclosed in the Disclosure Documents;
(viii) except as disclosed in the Disclosure Documents, there will be
no legal or governmental proceedings pending at the Reset Date to which the
Company or any of its subsidiaries is a party or of which any material
property or assets of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its subsidiaries,
might have a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries, taken as a whole;
(ix) any description of a contract, indenture, declaration of trust,
deed of trust, mortgage, loan agreement, note, lease or other instrument or
agreement contained in the Disclosure Documents will be, at the Effective
Time and thereafter through and including the Reset Date, true, complete
and correct in all material respects; and
14
(x) If the Registration Statement is filed, the Registration
Statement at the Effective Time will conform to the requirements of the
Securities Act and the Rules and Regulations and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and the Prospectus, as of the Effective Time and thereafter
through and including the Reset Date, will conform to the requirements of
the Securities Act and the Rules and Regulations and will not include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that no
--------
representation, warranty or agreement is made as to information contained
in or omitted from any Preliminary Prospectus, the Registration Statement
or the Prospectus in reliance upon and in conformity with written
information furnished to the Company by the Remarketing Agent specifically
for inclusion therein.
(b) The Remarketing Agent represents, warrants, covenants and agrees
with the Company that if it shall not have received a No Registration Opinion
and the Registration Statement shall not be effective on the Tender Notification
Date (or such later date as may be provided in Section 2(b)), the Remarketing
Agent will offer and sell the Subject Securities only in compliance with the
federal and state securities laws applicable to unregistered sales of securities
in effect at the time of the Remarketing.
4. Fees and Expenses. (a) The Company agrees to pay to the
------------------
Remarketing Agent upon settlement of the transactions contemplated by the
Remarketing (i) as compensation for its services hereunder, a fee equal to 1% of
the aggregate Par Amount of outstanding Subject Securities on the Reset Date
upon settlement of the transactions contemplated by the Remarketing, plus (ii)
all out-of-pocket expenses reasonably incurred by the Remarketing Agent in
connection with the performance of its duties; provided that if both the Initial
--------
Remarketing and the Final Remarketing fail, the Company shall not be required to
pay any fees to, or reimburse any out-of-pocket expenses of, the Remarketing
Agent.
(b) The Remarketing Agent acknowledges and agrees that the
performance of its duties hereunder will be without charge to holders or
purchasers of the Subject Securities other than the Company.
5. Broker-Dealer Participation. The Remarketing Agent shall enter
----------------------------
into Broker-Dealer Agreements with all broker-dealers ("Broker-Dealers"), if
--------------
any, which it selects to have participate in the remarketing process; provided
--------
that (i) such Broker-Dealers agree to comply with the terms of this Agreement,
including the terms of Section 3(b) of this Agreement, (ii) any fees or
commissions paid to the Broker-Dealers shall be paid by the Remarketing Agent
out of the fees it is paid pursuant to Section 4(a), and (iii) the Remarketing
Agent agrees to provide to the Company an executed copy of each Broker-Dealer
Agreement. Neither the Remarketing Agent nor the Company shall be responsible
for the out-of-pocket expenses of such Broker-Dealers or for ensuring compliance
by such Broker-Dealers with the terms of this Agreement (except, with respect to
the Remarketing Agent, as specifically set forth in the Broker-Dealer
Agreement).
15
6. Disclosure Documents and Other Information. (a) If (i) the
-------------------------------------------
Registration Statement is not required to be filed with the Commission pursuant
to the provisions of Section 2(b) of this Agreement and (ii) the Remarketing
Agent determines that it is necessary or desirable to use a disclosure document
in connection with the performance of its obligation to remarket the Subject
Securities, the Remarketing Agent will notify the Company and the Company will
provide to the Remarketing Agent prior to the Tender Notification Date at the
Company's expense a disclosure document or documents reasonably satisfactory to
the Remarketing Agent and its counsel in respect of the Subject Securities
(collectively, and including any documents or other information incorporated by
reference therein, the "Nonregistered Offering Documents"). The Company will
--------------------------------
supply the Remarketing Agent at the Company's expense with such number of copies
of the Disclosure Documents as the Remarketing Agent reasonably requests from
time to time. The Company will supplement and amend the Disclosure Documents so
that at all times they will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements in the
Disclosure Documents, in light of the circumstances under which they were made,
not misleading.
(b) The Company agrees to furnish to the Remarketing Agent (i) as
promptly as practicable after they are available, all regular and periodic
reports, if any, which the Company files with the Commission, if any, under the
Exchange Act and all reports which the Company provides generally to holders of
its publicly held securities and (ii) from time to time, such other information
concerning the Company as the Remarketing Agent may reasonably request.
(c) The Company will provide the Remarketing Agent with such
certificates, opinions of counsel, accountants' letters and other support for
the information contained in any Disclosure Documents as the Remarketing Agent
and its counsel may reasonably request.
(d) If the Registration Statement is filed with the Commission, the
Company agrees that it will:
(i) prepare the Registration Statement in conformity with the
requirements of the Securities Act and the Rules and Regulations;
(ii) cause the Registration Statement to become effective prior to
the Tender Notification Date (or such later date as may be permitted in
accordance with the provisions of Section 2(b));
(iii) prepare the Prospectus in a form approved by the Remarketing
Agent and file the Prospectus in accordance with Rule 424(b) (or any
successor applicable rule) under the Securities Act and Rule 430A(a)(3) (or
any successor applicable rule) under the Securities Act; make no further
amendment or any supplement to the Registration Statement or to the
Prospectus except as permitted herein; advise the Remarketing Agent,
promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
furnish the Remarketing Agent with copies
16
thereof; advise the Remarketing Agent, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the securities
covered by such Registration Statement for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information; and in the event of the issuance of any stop order
or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, promptly
use its reasonable best efforts to obtain its withdrawal;
(iv) furnish promptly to the Remarketing Agent and to counsel for the
Remarketing Agent a signed copy of the Registration Statement as originally
filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith;
(v) deliver promptly to the Remarketing Agent such number of the
following documents as the Remarketing Agent shall reasonably request: (1)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits) and
(2) each Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus; and, if the delivery of a Prospectus is required
at any time after the Effective Time in connection with the offering or
sale of the securities covered by the Registration Statement and if at such
time any events shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary to amend or supplement the Prospectus in
order to comply with the Securities Act, notify the Remarketing Agent and,
upon its request, prepare and furnish without charge to the Remarketing
Agent as many copies as the Remarketing Agent may from time to time
reasonably request of an amended or supplemented Prospectus which will
correct such statement or omission or effect such compliance;
(vi) file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Remarketing
Agent, be required by the Securities Act or requested by the Commission;
(vii) prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any Prospectus
pursuant to Rule 424 (or any applicable successor rule) of the Rules and
Regulations, furnish a copy thereof to the Remarketing Agent and counsel
for the Remarketing Agent;
(viii) as soon as practicable after the Effective Time, make
generally available to the Company's security holders and deliver to the
Remarketing
17
Agent an earnings statement of the Company and its subsidiaries (which need
not be audited) complying with Section 11(a) (or any applicable successor
section) of the Securities Act and the Rules and Regulations (including, at
the option of the Company, Rule 158 (or any applicable successor rule));
(ix) promptly from time to time take such action as the Remarketing
Agent may request to qualify the securities covered by the Registration
Statement for offering and sale under the securities laws of such
jurisdictions as the Remarketing Agent may request and to take all steps
necessary to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Subject Securities; provided, however,
-------- -------
that in connection therewith the Company will not be required to qualify as
a foreign corporation or to file a general consent to service of process in
any jurisdiction where it is not so qualified; and
(x) use its best effort to have the Subject Securities listed on any
securities exchange or quoted in any automated inter-dealer quotation
system reasonably requested by the Remarketing Agent.
7. Indemnification. (a) The Company will indemnify and hold
---------------
harmless the Remarketing Agent, its partners, directors and officers and each
person, if any, who controls such Remarketing Agent within the meaning of
Section 15 of the Securities Act against any losses, claims, damages or
liabilities, joint or several, to which the Remarketing Agent may become
subject, under the Securities Act or the Exchange Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Disclosure Document, or any amendment or
supplement thereto, or any Exchange Act Report or arise out of or are based upon
the omission or alleged omission to state therein a material fact necessary in
order to make the statements therein not misleading, in the light of the
circumstances under which they were made, and will reimburse the Remarketing
Agent for any legal or other expenses reasonably incurred by the Remarketing
Agent in connection with investigating or defending any such loss, claim,
damage liability or action as such expenses are incurred; provided, however,
-------- -------
that the Company 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 an untrue
statement or alleged untrue statement in or omission or alleged omission from
any Disclosure Document in reliance upon and in conformity with written
information furnished to the Company by the Remarketing Agent specifically for
use therein.
(b) The Remarketing Agent will indemnify and hold harmless the
Company and its directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act, against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Securities Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Disclosure Documents, or any amendment or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact necessary in order to
18
make the statements therein, in the light of the circumstances under which they
were made, not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by the Remarketing Agent specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
the indemnifying party from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any such action
is brought against any indemnified party and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes (i)
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action 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 indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Remarketing Agent on the other from the
Remarketing of the Subject Securities in accordance with this Agreement or (ii)
if the allocation provided by clause (i) above 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 the Remarketing Agent on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Remarketing
Agent on the other shall be deemed to be in the same proportion as the aggregate
outstanding Liquidation Amount bear to the fees received by
19
the Remarketing Agent from the Company under this Agreement. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Remarketing Agent and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), the Remarketing Agent shall not be
required to contribute any amount in excess of the amount by which the aggregate
outstanding Liquidation Amount of the Subject Securities remarketed exceeds the
amount of any damages which the Remarketing Agent has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Remarketing Agent within the meaning of the Securities Act or the Exchange Act;
and the obligations of the Remarketing Agent under this Section shall be in
addition to any liability which the Remarketing Agent may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act.
(f) The Company agrees to indemnify and hold the Tender Agent
harmless against any loss, liability or expense (including the reasonable fees
and expenses of the Tender Agent's counsel) incurred without negligence or bad
faith on the Tender Agent's part arising out of or in connection with the
carrying out of the Tender Agent's duties hereunder, including the costs and
expenses of defending the Tender Agent against any claim or liability. In no
case shall the Company be liable under this indemnity with respect to any claim
against the Tender Agent unless the Company shall be notified in writing by the
Tender Agent of the written assertion of a claim against the Tender Agent
promptly after the Tender Agent shall have received any such written assertion.
The Company shall be entitled to participate at its own expense in the defense
of any suit brought to enforce any such claim; and if the Company so elects at
any time after receipt of such notice, the Company shall assume the defense of
any such suit. In the event that the Company shall so assume the defense of any
such suit, the Company shall not be liable for the fees and expenses of any
additional counsel thereafter retained by the Tender Agent, so long as the
Company shall retain counsel reasonably satisfactory to the Tender Agent to
defend such suit.
8. Remarketing Agent's Liabilities. Except as specifically provided
--------------------------------
in Section 7, the Remarketing Agent shall incur no liability to the Company, the
Tender Agent or any holder of Subject Securities for its actions as Remarketing
Agent pursuant to the terms hereof without gross negligence or in the absence of
wilful misconduct. The undertaking of the Remarketing Agent to remarket any
Subject Securities shall be on a "best efforts" basis.
20
9. Termination. This Agreement will terminate upon the earliest to
------------
occur of the following: (i) the written agreement of all parties hereto; (ii)
the date that no Subject Security is outstanding; and (iii) the day immediately
following the Reset Date. The provisions of Sections 7, 8, 11 and 12 hereof will
continue in effect as to actions prior to the date of termination, and each
party will pay to the others any amounts owing at the time of termination.
10. Resignation and Removal; Appointment of Successor. (a) The
--------------------------------------------------
Remarketing Agent may resign at any time hereunder by giving at least 30 days'
written notice thereof to the Company and the Tender Agent. No successor need
have accepted its appointment for such resignation to be effective.
(b) The Remarketing Agent may be removed at any time for Cause by the
holders of a majority in aggregate Par Amount of the Subject Securities
outstanding, by written notice to the Remarketing Agent, the Tender Agent and
the Company. No successor need have accepted its appointment for such removal
to be effective.
(c) If the Remarketing Agent resigns or is removed in accordance with
Section 10(b), the Company will use its best efforts to appoint as the successor
Remarketing Agent hereunder an investment bank, broker, dealer or other
organization which, in the judgment of the Company, is qualified to remarket the
Subject Securities and to establish the Term Provisions. If the Company fails
to so appoint a successor Remarketing Agent reasonably promptly, in light of the
proximity of the Tender Notification Date, or if such successor fails to accept
such appointment, the holders of not less than 25% in aggregate Par Amount of
the Subject Securities outstanding, by written notice to the Tender Agent and
the Company, may appoint a successor Remarketing Agent which is an investment
bank, broker, dealer or other organization qualified to remarket the Subject
Securities and to establish the Term Provisions; provided that for purposes of
--------
determining the holders of not less than 25% in aggregate Par Amount of the
Subject Securities outstanding, Subject Securities owned by the Company or any
of its affiliates shall be disregarded and deemed not to be outstanding.
(d) A successor Remarketing Agent shall accept its appointment by
executing and delivering a written instrument of acceptance to the Tender Agent
and the Company.
(e) The provisions of Sections 7, 8, 11 and 12 hereof will continue
in effect as to actions of the Remarketing Agent prior to the date of
resignation or removal, and the Remarketing Agent will pay to and have the right
to receive from the other parties hereto any amounts owing at the time of such
event.
(f) The Tender Agent shall provide written notice of each resignation
and each removal of the Remarketing Agent and each appointment of a successor
Remarketing Agent and such successor's acceptance thereof by first-class mail,
postage prepaid, to the holders of the Subject Securities as their names and
addresses appear in the applicable register.
(g) Any corporation or other entity into which the Remarketing Agent
may be merged or converted or with which it may be consolidated, or any
corporation
21
resulting from any merger, conversion or consolidation to which the Remarketing
Agent may be a party, or any corporation succeeding to all or substantially all
of the business of the Remarketing Agent, shall be the successor of the
Remarketing Agent hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
11. Dealing in Subject Securities by Remarketing Agent. The
--------------------------------------------------
Remarketing Agent, either as principal or agent, may buy, sell, own, hold and
deal in Subject Securities, and may join in any action which any owner of the
Subject Securities may be entitled to take with like effect as if it did not act
in any capacity hereunder. Except as provided in the next succeeding sentence,
the Remarketing Agent is under no obligation at any time to purchase Subject
Securities. If the Term Rate is established by the Remarketing Agent but on the
Reset Date the Remarketing Agent is unable to consummate the sale of one or more
Subject Securities tendered for remarketing, the Remarketing Agent shall
purchase such Subject Securities on the Reset Date for 101% of their aggregate
Par Amount; provided, however, that the Remarketing Agent shall have no
-------- -------
obligation to purchase such Subject Securities in the event of a Failed
Remarketing. The Remarketing Agent agrees that the purchase of Subject
Securities for its own account or the account of its affiliates will be upon
terms no more favorable to it than those pertaining to the purchase of Subject
Securities in the market (which shall be determined by the Remarketing Agent in
its sole discretion) in general at the time of such purchase and that neither it
nor its affiliates will elect to retain Subject Securities on the Reset Date if
the Subject Securities could be remarketed pursuant to this Agreement on terms
more favorable to the Company than the terms upon which the Remarketing Agent or
such affiliates would continue to hold it. The Remarketing Agent, either as
principal or agent, may also engage in or be interested in any financial or
other transaction with the Company and may act as depository, trustee or agent
for any committee or body of owners of Subject Securities or other obligations
of the Company as freely as if it had no obligations hereunder.
12. Records. The Remarketing Agent agrees to keep books and records
-------
relating to its activities as Remarketing Agent in accordance with standard
industry practice.
13. Purchase and Sales by Company. While the Company and its
-----------------------------
affiliates may from time to time purchase, hold and sell Subject Securities, the
Company and the Remarketing Agent acknowledge that neither the Company nor any
affiliate of the Company may acquire or bid to acquire Subject Securities on the
Reset Date or submit orders in the Remarketing. The Remarketing Agent agrees
that it will not knowingly remarket any Subject Securities to the Company or any
of its affiliates.
14. Communication of Remarketing Conditions. The Remarketing Agent
---------------------------------------
agrees, upon request from time to time by any holder of Subject Securities and
to the extent the Remarketing Agent deems advisable, to advise such holder of
current Remarketing Conditions.
22
15. Notices. Unless otherwise provided herein, all notices,
--------
requests, demands and formal actions hereunder shall be in writing and mailed or
sent by facsimile transmission or delivered, as follows:
If to the Company:
Radio One, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Tender Agent:
American Stock Transfer & Trust Co., as Tender Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Remarketing Agent:
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Transactions Advisory Group - Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Each of the above parties may, by written notice given hereunder to
the others, designate any further or different addresses or telecopier numbers
to which subsequent notices, certificates, requests or other communications
shall be sent. In addition, the parties hereto may agree to any other means by
which subsequent notices, certificates, requests or other communications may be
sent.
16. Successors and Assigns. This Agreement shall be binding upon,
-----------------------
inure to the benefit of and be enforceable by, the respective successors and
assigns of the Company, the Tender Agent, the Remarketing Agent and the holders
of the Subject Securities.
17. Entire Agreement. Except as otherwise provided herein, this
-----------------
Agreement contains the entire agreement between the parties relating to the
subject matter hereof, and there are no other representations, endorsements,
promises, agreements or understandings, oral, written or inferred, among the
parties.
23
19. Descriptive Headings. The descriptive headings of the several
---------------------
sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
20. Amendment; Waiver. (a) This Agreement shall not be deemed or
------------------
construed to be modified, amended, rescinded, canceled or waived, in whole or in
part, except by a written instrument signed by a duly authorized representative
of each of the Company, the Tender Agent and the Remarketing Agent.
(b) Failure of any party to exercise any right or remedy under this
Agreement in the event of a breach hereof by the other party shall not
constitute a waiver of any such right or remedy with respect to any subsequent
breach.
21. Severability. If any clause, provision or section of this
-------------
Agreement shall be ruled invalid or unenforceable by any court of competent
jurisdiction, the invalidity or unenforceability of such clause, provision or
section shall not affect any of the remaining clauses, provisions or sections
hereof.
22. Execution in Counterparts. This Agreement may be executed in
--------------------------
several counterparts, each of which shall be deemed an original and all of which
shall constitute but one and the same instrument. It shall not be necessary in
making proof of this Agreement to produce or account for more than one such
counterpart signed by the party against which enforcement of this Agreement is
sought.
23. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
--------------
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES HERETO SHALL BE GOVERNED BY, THE
LAW OF THE STATE OF NEW YORK.
[SIGNATURE PAGE FOLLOWS]
24
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
RADIO ONE, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President & CEO
AMERICAN STOCK TRANSFER & TRUST
CO., as Tender Agent
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON
CORPORATION, as Remarketing Agent
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
25
