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EXHIBIT 10.1
among
XXX COMMUNICATIONS, INC.,
COX RHINOS TRUST
and
BANC OF AMERICA SECURITIES LLC
Dated as of October 6, 1999
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(the "AGREEMENT") dated as of October 6, 1999 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 Trust shall issue 500,000 Auction Rate Reset Preferred
Securities (the "PREFERRED SECURITIES") in an aggregate stated liquidation
amount of $500,000,000 and 15,500 Auction Rate Reset Common Securities (the
"COMMON SECURITIES", and together with the Preferred Securities, the "TRUST
SECURITIES") in an aggregate stated liquidation amount of $15,500,000 under the
Amended and Restated Trust Agreement dated as of October 6, 1999 among the
Company, the Administrative Trustees, the Delaware Trustee and the Property
Trustee (as the same may be amended from time to time, the "TRUST AGREEMENT");
WHEREAS, the sole assets of the Trust, consisting of $515,500,000
aggregate principal amount of Auction Rate Reset Senior Notes Series A (the
"SENIOR NOTES") of the Company shall be purchased by the Trust from the Company
with the proceeds of the sale of the Trust Securities;
WHEREAS, upon the occurrence of a Trigger Event (as defined herein),
the Preferred Securities (or, following the distribution of Senior Notes to
Holders of Preferred Securities upon the termination of the Trust, the Senior
Notes) may be remarketed in accordance with the terms hereof;
WHEREAS, the Company and the Trust have requested that Banc of America
Securities LLC ("BAS") act as the Remarketing Agent and, as such, perform the
duties described herein; and
WHEREAS, BAS is willing to act as Remarketing Agent and, as such, to
perform such duties on the terms and conditions expressly set forth herein;
NOW, THEREFORE, in consideration of the covenants herein made, and
subject to the conditions herein set forth, the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Trust Agreement. In
addition, as used in this Agreement, the following terms shall have the
following definitions:
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"1934 ACT REPORTS" has the meaning set forth in Section 2(b)(iv).
"AFFILIATED BIDDER" has the meaning set forth in Section 5(b).
"ASSOCIATED PERSON" has the meaning set forth in Article 1(ee) of the
ByLaws of the National Association of Securities Dealers, Inc.
"BAS" has the meaning set forth in the fourth recital hereto.
"BID" means an irrevocable offer to purchase the aggregate outstanding
Liquidation Amount of Preferred Securities at the Remarketing Price or,
following any distribution of Senior Notes to Holders, the aggregate outstanding
principal amount of such Senior Notes, as the case may be, with a Distribution
Rate or interest rate, as applicable, equal to the Bid Rate specified in such
Bid and with a redemption date or maturity date, as the case may be, on the
Remarketed Maturity Date.
"BID RATE" means the proposed Distribution Rate on the Preferred
Securities or interest rate on Senior Notes specified in a Bid.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day
on which banking institutions in The City of New York are authorized or required
by law, regulation or executive order to close.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" has the meaning set forth in the initial paragraph hereto.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE ACT REGULATIONS" means the rules and regulations promulgated
under the Exchange Act.
"EXPECTED RESET DATE" has the meaning set forth in Section 5(a)(i).
"FAILED REMARKETING" means an event deemed to have occurred if,
following the giving of notice by the Requesting Holders to the Remarketing
Agent as contemplated by Section 5(a)(i), the settlement of a purchase and sale
of the Trust Securities (or, if applicable, the Senior Notes) shall not have
occurred within the applicable time limit specified in this Agreement and in any
event if such a settlement shall not have occurred by the third Business Day
following the related Final Reset Date.
"FINAL RESET DATE" has the meaning set forth in Section 5(a)(iii).
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"FORMER HOLDERS" has the meaning set forth in Section 5(i).
"FORWARD UNDERWRITING AGREEMENT" means the Forward Underwriting
Agreement dated as of October 6, 1999 between the Company and BAS.
"GUARANTEE AGREEMENT" means the Preferred Securities Guarantee
Agreement dated as of October 6, 1999, executed by the Company for the benefit
of Holders of the Preferred Securities, as amended, supplemented, modified or
superseded from time to time.
"INDENTURE" means the Indenture dated as of June 27, 1995 between the
Company and The Bank of New York, as Indenture Trustee, as supplemented by the
Second Supplemental Indenture dated as of October 6, 1999 and as further
amended, supplemented, modified or superceded from time to time.
"INDENTURE TRUSTEE" means the Trustee pursuant to the Indenture.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940, as
amended.
"MATERIAL ADVERSE CHANGE" means any development that would be
reasonably expected to result in a material adverse change in the business,
operations, properties or financial condition of the Company and its
subsidiaries, taken as a whole, or a material adverse effect on the legality,
validity or enforceability of this Agreement.
"OFFERING MEMORANDUM" has the meaning set forth in Section 13.
"PREFERRED SECURITIES" has the meaning set forth in the first recital
hereto.
"REFERENCE CORPORATE DEALER" means a leading dealer of publicly traded
debt securities selected by the Company, which dealer shall be a Qualified
Institutional Buyer (as defined in Rule 144A under the Securities Act) and which
shall not include BAS, its Affiliates (as such term is defined in Rule 405 under
the Securities Act) or its Associated Persons.
"REMARKETED MATURITY DATE" means the later of (i) the thirtieth
anniversary of the Remarketing Settlement Date on which Replacement Securities
are issued and (ii) October 6, 2029.
"REMARKETING" means a remarketing of Preferred Securities or Senior
Notes pursuant to Section 5.
"REMARKETING FEE" has the meaning set forth in Section 9.
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"REMARKETING NOTICE" has the meaning set forth in Section 5(a)(i).
"REMARKETING PRICE" means (i) with respect to the Preferred Securities,
a price equal to the sum of (A) 100.25% of the aggregate outstanding Liquidation
Amount of the Preferred Securities plus (B) accrued and unpaid Distributions
thereon (including 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) 100.25% of the
aggregate outstanding principal amount of such Senior Notes, plus (B) accrued
and unpaid interest thereon (including any Additional Interest) (if any), to and
including the Remarketing Settlement Date on which Replacement Securities are
issued.
"REMARKETING SETTLEMENT DATE" means the third Business Day immediately
following the Reset Date.
"RENEWED REMARKETING" has the meaning set forth in Section 8.
"REPLACEMENT PREFERRED SECURITIES" has the meaning set forth in Section
5(j).
"REPLACEMENT SECURITIES" has the meaning set forth in Section 5(j).
"REPLACEMENT SENIOR NOTES" has the meaning set forth in Section 5(j).
"REPRESENTATION DATE" has the meaning set forth in Section 2(a).
"REQUESTING HOLDERS" has the meaning set forth in Section 5(a)(i).
"RESET DATE" means any date established as a Reset Date pursuant to
Section 5.
"RESET RATE" means the Winning Bid Rate.
"SECONDARY PURCHASE AGREEMENT" means an agreement to be dated as of the
Reset Date (or such other date permitted by applicable law) among the Company,
the Trust, the Remarketing Agent and the Secondary Purchaser (selected in the
manner provided in Section 5(c)) providing for the purchase of the Preferred
Securities, or the Senior Notes, as the case may be, by the Secondary Purchaser,
substantially in the form of Exhibit A hereto, or as otherwise agreed among the
Company, the Trust, the Remarketing Agent and the Secondary Purchaser.
"SECONDARY PURCHASER" has the meaning set forth in Section 5(c).
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"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR NOTES" has the meaning set forth in the second recital hereto.
"TRANSACTION DOCUMENTS" means this Agreement, the Purchase Agreement,
the Placement Fee Letter, the Trust Agreement, the Guarantee Agreement, the
Indenture, the Common Securities, the Forward Underwriting Agreement, the
Secondary Purchase Agreement, the Preferred Securities and the Senior Notes;
provided that for any representation made as of the date hereof pursuant to
Section 2(b), Transaction Documents means this Agreement, the Purchase
Agreement, the Placement Fee Letter, the Trust Agreement, the Guarantee
Agreement, the Indenture, the Common Securities, the Forward Underwriting
Agreement, the Preferred Securities and the Senior Notes.
"TRIGGER EVENT" has the meaning set forth in Section 5(a)(i).
"TRIGGER PRICE" has the meaning set forth in Section 10.
"TRUST" has the meaning set forth in the initial paragraph hereto.
"TRUST AGREEMENT" has the meaning set forth in the initial paragraph
hereto.
"TRUST SECURITIES" has the meaning set forth in the first recital
hereto.
"WINNING BID RATE" has the meaning set forth in Section 5(b).
SECTION 2. Representations and Warranties. (a) Basic Warranties. Each
of the Company and the Trust, on the one hand, and the Remarketing Agent, on the
other hand, represents and warrants to the other as of the date hereof, the
Reset Date and the Remarketing Settlement Date (each of the foregoing dates
being hereinafter referred to as a "REPRESENTATION DATE") that:
(i) Status. It is a duly and validly existing entity
under the laws of the jurisdiction of its creation, formation or
incorporation and, if relevant under such laws, in good standing.
(ii) Powers. It has the corporate or trust power and
authority to execute, enter into and perform its obligations under, or
contemplated under, this Agreement and consummate the transactions
contemplated hereby.
(iii) No Violation or Conflict. The execution, delivery and
performance by such party of this Agreement, the consummation of the
transactions herein contemplated and compliance by such party with its
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obligations hereunder (A) do not violate or conflict with (1) any
provision of its organizational documents, (2) any law applicable to
it, any order or judgment of any court or other agency of government
applicable to it or any of its assets that affects the legality,
validity or enforceability of this Agreement and (B) do not and will
not conflict with or constitute a breach of any contractual restriction
binding on or affecting it or any of its assets.
(iv) Consents. All governmental and other consents that
are required to have been obtained by it with respect to the
performance by such party of its obligations under this Agreement have
been obtained and are in full force and effect and all conditions of
any such consents have been complied with, except for such consents
required under state securities laws or the laws of a foreign
jurisdiction, if applicable, in connection with a Remarketing or a
Renewed Remarketing.
(v) Obligations Binding. Its obligations under this
Agreement constitute its legal, valid and binding obligations,
enforceable against it in accordance with the terms of this Agreement,
except as the enforcement hereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws of general
application relating to or affecting the enforcement of creditors'
rights or by general equitable principles.
(vi) Absence of Litigation. There is not pending or, to
its knowledge, threatened against or affecting it or any of its
Affiliates any action, suit or proceeding at law or in equity or before
any court, tribunal, governmental body, agency or official or any
arbitrator that would reasonably be expected to materially and
adversely affect the legality, validity or enforceability against it of
this Agreement or its ability to perform its obligations under this
Agreement.
(vii) Non-Reliance. It is acting for its own account, and
it has made its own independent decision to enter into this Agreement
and as to whether this Agreement is appropriate or proper for it based
upon its own judgment and upon advice from such advisers as it has
deemed necessary. It is not relying on any communication (written or
oral) of any other party as investment advice or as a recommendation to
enter into this Agreement, it being understood that information and
explanations related to the terms and conditions of this Agreement
shall not be considered investment advice or a recommendation to enter
into this Agreement. No communication (written or oral) received from
any other party shall be deemed to be an assurance or guarantee as to
the expected results of this Agreement. No other party is acting as a
fiduciary for or an adviser to it with respect to this Agreement.
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(viii) Assessment and Understanding. It is capable of
assessing the merits of and understanding (on its own behalf or through
independent professional advice), and understands and accepts, the
terms, conditions and risks of this Agreement. It is also capable of
assuming, and assumes, the risks of this Agreement.
(b) Representations and Warranties of the Company and the Trust.
Each of the Company and the Trust further represents and warrants to the
Remarketing Agent as of each Representation Date, as applicable to each such
entity, that:
(i) Securities Validly Issued. The Preferred Securities
and Senior Notes have been, and the Replacement Preferred Securities
and the Replacement Senior Notes will, following a Trigger Event, be
validly authorized and executed by the Trust and the Company, as the
case may be, and, when authenticated, issued and delivered in the
manner provided for in the Trust Agreement and the Indenture, as the
case may be, and delivered against payment of the purchase price
therefor as provided in the Purchase Agreement, and constitute, or will
constitute, legally binding obligations of the Trust or the Company, as
the case may be, entitled to the benefits of the Trust Agreement and
Indenture.
(ii) No Event of Default. No Event of Default under the
Trust Agreement and no Event of Default under the Indenture has
occurred and is continuing and no such event or circumstance would
occur as a result of its entering into or performing its obligations
under this Agreement.
(iii) Compliance with Exchange Act Requirements. The
Company has made all the filings with the Commission that it is
required to make under the Exchange Act and the Exchange Act
Regulations, and each such filing complies in all material respects
with the requirements of the Exchange Act and Exchange Act Regulations.
(iv) No Material Misstatements. The Company's most recent
Annual Report on Form 10-K, and its Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K filed after the end of the fiscal year to
which such Annual Report relates (collectively, the "1934 ACT
REPORTS"), as amended and supplemented by material press releases, at
the time they were filed did not, and do not, contain 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.
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(v) No Material Adverse Change. Since the respective
dates as of which information is given in the 1934 Act Reports, except
as otherwise stated therein, there has been no Material Adverse Change.
(vi) Not an Investment Company. Neither the Company nor
the Trust is an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment
Company Act.
SECTION 3. Covenants. (a) The Company hereby covenants with the
Remarketing Agent as follows:
(i) Maintain Authorizations. The Company shall use its
commercially reasonable efforts to maintain in full force and effect
all consents of any governmental or other authority that are required
to be obtained by it with respect to this Agreement and shall use its
commercially reasonable efforts to obtain any such consents that may
become necessary in the future.
(ii) Comply with Laws. The Company shall comply in all
material respects with all applicable laws and orders to which it may
be subject if failure so to comply would materially impair its ability
to perform its obligations under this Agreement.
(iii) Furnish Documentation. The Company will furnish to
the Remarketing Agent: (i) unless available to the Remarketing Agent on
XXXXX or the Company's website at http: //xxx.xxx.xxx, each document
filed after the date hereof by the Company pursuant to the periodic
reporting requirements of the Exchange Act and (ii) in connection with
the remarketing of the Preferred Securities or Senior Notes, as the
case may be, such other information as the Remarketing Agent may
reasonably request in writing from time to time. Notwithstanding the
foregoing sentence, the Company agrees to provide the Remarketing Agent
with as many copies of the foregoing written materials and other
Company-approved information as the Remarketing Agent may reasonably
request for use in connection with the remarketing of the Preferred
Securities or Senior Notes, as the case may be, and consents to the use
thereof for such purpose; provided, however, that materials designated
confidential or proprietary by the Company shall not be used for such
purpose without the prior written consent of the Company.
(iv) Notification. If, at any time prior to the
Remarketing Settlement Date, any event or condition known to the
Company relating to or affecting the Company, the Preferred Securities
or the Senior Notes shall occur that would reasonably be expected to
cause any of the reports,
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documents, materials or information referred to in Section 3(a)(iii) or
any document incorporated therein by reference to contain an untrue
statement of a material fact or omit to state a material fact, the
Company shall promptly notify the Remarketing Agent in writing of the
then-known circumstances and details of such event or condition.
(v) Comply with Securities Laws. The Company will comply
with the Securities Act and the rules and regulations of the Commission
thereunder, the Exchange Act and the Exchange Act Regulations so as to
permit the completion of the remarketing of the Preferred Securities or
Senior Notes, as the case may be, as contemplated in this Agreement.
(vi) No Purchase of Securities. The Company agrees that
neither it nor any of its subsidiaries or Affiliates shall purchase or
otherwise acquire, or enter into any agreement to purchase or otherwise
acquire, any of the Preferred Securities or Senior Notes prior to the
remarketing thereof by the Remarketing Agent, other than pursuant to
this Agreement or pursuant to the terms of the Preferred Securities or
the Senior Notes.
(vii) Notification of Rating Agency Action. The Company
will provide prompt notice by telephone, confirmed in writing (which
may include facsimile or other electronic transmission), to the
Remarketing Agent of any notification or announcement by a "nationally
recognized statistical rating organization" (as defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act)
with regard to a downgrade or withdrawal of the rating of any security
of the Company or the placement on what is currently called a "watch
list"or a "credit watch" with negative implications of any security of
the Company.
(viii) Restriction on Debt Issuance. During the period
commencing on the date on which the Remarketing Agent delivers a
Remarketing Notice in accordance with Section 5(a)(i) and ending on the
earlier of (A) the date of the related Remarketing Settlement Date or
(B) the date of the related Failed Remarketing, the Company will not,
without the consent of the Remarketing Agent, offer, sell or contract
to sell, or otherwise dispose of, directly or indirectly, or announce
the offering of, any senior debt securities with a maturity of more
than ten years.
(ix) Reasonable Efforts. The Company shall use its
commercially reasonable efforts to assist the Remarketing Agent in
remarketing the Preferred Securities or the Senior Notes, as the case
may be, in the manner contemplated by this Agreement.
(b) The Remarketing Agent hereby covenants with the Company as
follows:
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(i) Maintain Authorizations. The Remarketing Agent will
use all of its reasonable efforts to maintain in full force and effect
all consents of any governmental or other authority that are required
to be obtained by it with respect to this Agreement and shall use all
reasonable efforts to obtain any that may become necessary in the
future.
(ii) Comply with Laws. The Remarketing Agent shall comply
in all material respects with all applicable laws and orders which it
may be subject if failure so to comply would materially impair its
ability to perform its obligations under this Agreement.
SECTION 4. Appointment and Obligations of Remarketing Agent and
Calculation Agent; Secondary Purchaser. (a) The Company and the Trust hereby
appoint BAS as Remarketing Agent and as Calculation Agent under the Trust
Agreement and the Indenture (i) to determine, in accordance with the terms
described in Section 5(b), the Reset Rate that, when applied to the Preferred
Securities (or, following the distribution of the Senior Notes to Holders of the
Preferred Securities upon termination of the Trust, the Senior Notes), shall
result in the resale of all outstanding Preferred Securities (or, if applicable,
all outstanding Senior Notes), at a sales price equal to the Remarketing Price;
provided that the Reset Rate shall in no event exceed the rate permitted by
applicable law, (ii) to conduct a private auction of all outstanding Preferred
Securities or Senior Notes, as the case may be, and (iii) to enter into a
Secondary Purchase Agreement with respect to the Preferred Securities or the
Senior Notes, as the case may be.
(b) Pursuant to the Secondary Purchase Agreement, the Secondary
Purchaser, either as the sole purchaser or as the representative of a syndicate
of purchasers designated by the Secondary Purchaser, shall agree, subject to the
terms and conditions set forth therein, that the Secondary Purchaser and any
such other purchasers shall purchase severally such Preferred Securities or
Senior Notes, as the case may be, from the holders thereof at a price equal to
the Remarketing Price.
SECTION 5. Determination of Reset Date; Remarketing Procedures.
(a) (i) Subject to Section 8, (i) if the Closing Price of the
Common Stock on any Trading Day is less than the Trigger Price and (ii) in any
case, if the Preferred Securities (or the Senior Notes) remain outstanding at 36
months from the date of issuance (each, a "TRIGGER EVENT"), 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 the right to require
remarketing of the Preferred Securities (or, if applicable, the Senior Notes).
The Requesting Holders
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may exercise this right by delivering a written notice to the Remarketing Agent
at any time on or prior to the sixth Business Day following the date on which
such Trigger Event occurs. Upon the receipt of such notice, the Remarketing
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 the sixth Business Day
after the date on which the Remarketing Notice is delivered by the Remarketing
Agent (the "EXPECTED RESET DATE").
(ii) If the Requesting Holders do not exercise their right
to require the remarketing of the Preferred Securities (or, if
applicable, the Senior Notes) pursuant to Section 5(a)(i) above with
respect to any Trigger Event, the Requesting Holders shall continue to
have the right to require the remarketing of the Preferred Securities
(or, if applicable, the Senior Notes) in accordance with Section
5(a)(i) with respect to any subsequent Trigger Event.
(iii) Notwithstanding Section 5(a)(i):
(A) the Company may, by notice to the
Remarketing Agent, direct that the Reset Date be delayed if
the Company believes it will be unable to meet the conditions
to Remarketing in the absence of such a delay; and
(B) the Remarketing Agent may, by notice to the
Company, direct that the Reset Date be delayed if the
Remarketing Agent believes that a Remarketing will not be
successful in the absence of such a delay;
provided that the Company and the Remarketing Agent, in either such
event, will use their reasonable best efforts to establish a delayed
Reset Date that is within five Business Days after the Expected Reset
Date, but in no event later than the 30th Business Day following the
date on which the related Remarketing Notice was delivered (the "FINAL
RESET DATE").
(iv) If the Company and the Remarketing Agent have not
agreed, on or prior to the sixth Business Day preceding the Final Reset
Date, to a Reset Date that is not later than the Final Reset Date, a
Failed Remarketing, subject to the provisions of Section 7, shall be
deemed to have occurred.
(b) The Company shall, by notice to the Remarketing Agent no later
than five Business Days prior to the Reset Date, select and specify three
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Reference Corporate Dealers. By 3:00 p.m., New York City time, on the Reset
Date, the Remarketing Agent shall request Bids from such Reference Corporate
Dealers. 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, the Indenture Trustee and the
Property 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
the corresponding Remarketing Settlement 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.
(c) On the Reset Date, the Remarketing Agent shall designate as
the Secondary Purchaser (the "SECONDARY PURCHASER") the Reference Corporate
Dealer providing the Bid containing the Winning Bid Rate. If the Winning Bid
Rate is specified in the Bids submitted by two or more bidders, the Remarketing
Agent shall, in consultation with the Company, designate one of such bidders as
the Secondary Purchaser.
(d) On the Reset Date, the Secondary Purchaser shall enter into a
Secondary Purchase Agreement for the purchase by such Secondary Purchaser at the
Remarketing Price of the aggregate Liquidation Amount of Preferred Securities,
with (i) a Distribution Rate equal to the Winning Bid Rate (or, if Senior Notes
shall have been distributed to Holders of the Trust Securities, the aggregate
principal amount of Senior Notes with an interest rate equal to the Winning Bid
Rate) and (ii) a Mandatory Redemption Date (or, in the case of Senior Notes, a
maturity date) on the Remarketed Maturity Date.
(e) If a Remarketing shall have occurred pursuant to this Section
5 but settlement of the purchase and sale of the Preferred Securities or Senior
Notes, as the case may be, does not occur on the corresponding Remarketing
Settlement Date, then a Failed Remarketing shall be deemed to have occurred on
such Remarketing Settlement Date.
(f) At the time and in the manner specified in the Secondary
Purchase Agreement, the Secondary Purchaser shall pay on the Remarketing
Settlement Date to the Remarketing Agent on behalf of the holders of the
Preferred Securities or Senior Notes, as the case may be, an amount of cash
equal to the Remarketing Price.
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(g) Unless otherwise agreed among the Remarketing Agent, the
paying agent (under the Trust Agreement or Indenture, as applicable) and any
Former Holder, the Remarketing Agent shall promptly pay the Remarketing Price,
less the Remarketing Fee, to the paying agent, acting solely as agent for the
Former Holders, and the paying agent shall pay such amount to the Former Holders
on the Remarketing Settlement Date in the manner specified in the Trust
Agreement or the Indenture, as the case may be. Any amounts held by the paying
agent for payment to the Former Holders shall not be property of the Trust or
the Company, as the case may be.
(h) The obligation of the Remarketing Agent to make payment to the
Former Holders in connection with the Remarketing shall be limited to the extent
that the Secondary Purchaser has delivered the Remarketing Price therefor to the
Remarketing Agent.
(i) Any outstanding Preferred Securities (or, if applicable, the
Senior Notes) purchased on the Remarketing Settlement Date shall be deemed to be
transferred to the Secondary Purchaser and shall be replaced in the manner
provided in Section 5(j). On and after the Remarketing Settlement Date (except
in the event of a Failed Remarketing), (i) the Trust (or the Company, in the
case of the Senior Notes) shall make no further payments to, and the Trust (or
the Company, in the case of the Senior Notes) shall have no further obligations
under the Trust Agreement (or the Indenture, in the case of the Senior Notes) in
respect of, the holders of such replaced securities (the "FORMER HOLDERS"), (ii)
the Trust (or the Company, in the case of the Senior Notes) shall only be
obligated to make payments to the holders of Replacement Securities and (iii)
the Preferred Securities (or, if applicable, the Senior Notes) of the Former
Holders shall no longer represent an obligation of, or interest in, the Trust
(or the Company, in the case of the Senior Notes) but shall only represent a
right to receive the proceeds of the Remarketing from the paying agent under the
Trust Agreement or the Indenture, as the case may be.
(j) (i) The Company shall cause replacement certificates
evidencing the remarketed Preferred Securities (the "REPLACEMENT PREFERRED
SECURITIES") to be executed by an Administrative Trustee on behalf of the Trust
and authenticated by the Property Trustee and (ii) the Senior Note Issuer shall
cause replacement certificates evidencing the Senior Notes (the "REPLACEMENT
SENIOR NOTES", and together with the Replacement Preferred Securities, the
"REPLACEMENT SECURITIES") to be executed by an authorized signatory and
authenticated by the Indenture Trustee, in each case, in accordance with the
provisions of Section 5. If the Preferred Securities are to be purchased on the
Remarketing Settlement Date, (A) the Replacement Preferred Securities shall be
delivered to the purchaser of the remarketed Preferred Securities in accordance
with the terms of the Secondary Purchase Agreement and (B) the Replacement
Senior Notes shall be delivered to the Trust. If the Senior Notes are to be
purchased on the Remarketing Settlement
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Date, the Replacement Senior Notes shall be delivered to the purchaser of the
remarketed Senior Notes in accordance with the terms of the Secondary Purchase
Agreement.
SECTION 6. Reset of Distribution Rate, Mandatory Redemption Date,
Interest Rate and Maturity Date. From and including the Remarketing Settlement
Date on which Replacement Securities are issued, (a) the Distribution Rate on
the Trust Securities and the interest rate on the Senior Notes shall be the
Winning Bid Rate and (b) the Mandatory Redemption Date and the maturity date of
the Senior Notes shall be the Remarketed Maturity Date.
SECTION 7. Failed Remarketing. The Remarketing Agent shall give notice
of any Failed Remarketing on the date such Failed Remarketing occurs, or is
deemed to have occurred, by 4:00 p.m., New York City time, to the Company, the
Senior Note Issuer, the Property Trustee, the Indenture Trustee and the paying
agent under the Indenture.
SECTION 8. Renewed Remarketing. If a Failed Remarketing has occurred,
the Sponsor may thereafter at its option at any time or from time to time
initiate a new Remarketing (a "RENEWED REMARKETING") by giving notice of such
election to the Remarketing Agent. Upon the receipt of such notice, the
Remarketing Agent shall immediately deliver written notice to the Holders of the
Preferred Securities which are not Replacement Securities, and such notice shall
constitute a Remarketing Notice for purposes of Section 5(a)(i).
SECTION 9. Remarketing Fee. With respect to the Remarketing, the
Remarketing Agent and the Calculation Agent shall retain as an aggregate fee
(the "REMARKETING FEE") an amount equal to 25 basis points (.25%) of the
aggregate Liquidation Amount of the remarketed Preferred Securities or 25 basis
points (.25%) of the aggregate principal amount of the Senior Notes, as the case
may be, from the purchase price received in connection with such Remarketing.
SECTION 10. Adjustments to Trigger Price. The "TRIGGER PRICE" shall
initially be equal to $28.00. Following the determination by the Remarketing
Agent in its reasonable discretion that a Potential Adjustment Event has
occurred, the Remarketing Agent shall determine (after consultation with the
Company) whether such Potential Adjustment Event has a diluting or concentrative
effect on the theoretical value of the Common Stock and, if so, shall make the
corresponding adjustment(s), if any, to the Trigger Price. The Company shall
promptly notify the Remarketing Agent of any Potential Adjustment Event. The
Remarketing Agent may, but need not, determine the appropriate adjustment(s) by
reference to the adjustment(s) in respect of such Potential Adjustment Event
made by an options exchange to options on the Common Stock traded on that
options exchange. In the event of any merger, consolidation or reorganization of
the
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Company, the Remarketing Agent shall determine (after consultation with the
Company) the appropriate Trigger Price as a result of such event.
SECTION 11. Replacement and Resignation of Remarketing Agent. (a) The
Company shall not have the right to replace BAS as the Remarketing Agent, except
in the case of bad faith, gross negligence or willful misconduct by BAS.
(b) BAS may resign at any time for good reason (after consultation
with the Company) and, subject to the following sentence, shall be discharged
from its duties and obligations hereunder or as Calculation Agent under the
Trust Agreement and the Indenture by giving no less than 10 Business Days'
notice. Any such resignation shall become effective upon the Company's
appointment of a successor to perform the services that would otherwise be
performed hereunder by the Remarketing Agent or the Calculation Agent under the
Trust Agreement and the Indenture, as the case may be, and the agreement of any
such successor so to serve. Upon receiving notice from the Remarketing Agent
that it wishes to resign hereunder or as Calculation Agent under the Trust
Agreement and the Indenture stating the reasons for such resignation, the
Company shall appoint such a successor and enter into a new with it as soon as reasonably practicable.
(c) This Agreement shall terminate as to any Remarketing Agent
that is replaced on the effective date of its replacement pursuant to Section
11(b). Notwithstanding any such termination, the obligations of the Company set
forth in Section 15 shall survive and remain in full force and effect until all
amounts payable under said Section 15 shall have been paid in full.
SECTION 12. Dealing in the Securities. BAS, when acting as Remarketing
Agent hereunder or under the Secondary Purchase Agreement or when acting in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold or deal in any of the Preferred Securities or Senior Notes. The
Remarketing Agent may exercise any vote or join in any action with respect to
any Preferred Securities or Senior Notes owned by it with like effect as if it
did not act in any capacity hereunder. BAS, in its individual capacity, either
as principal or agent, may also engage in or have an interest in any financial
or other transaction with the Company as freely as if it did not act in any
capacity hereunder.
SECTION 13. Offering Memorandum. Promptly following a Trigger Event,
the Company shall furnish an offering memorandum (the "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.
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SECTION 14. Conditions to the Remarketing Agent's Obligations. (a) The
obligations of the Remarketing Agent, the Secondary Purchaser and any other
purchasers to perform their respective obligations hereunder and under the
Secondary Purchase Agreement shall be subject to the terms and conditions of the
Secondary Purchase Agreement.
(b) If at any time during the term of this Agreement, any Event of
Default under the Indenture or any Event of Default under the Trust Agreement,
or event that with the passage of time or the giving of notice or both would
become an Event of Default under the Indenture or an Event of Default under the
Trust Agreement, has occurred and is continuing under the Indenture or the Trust
Agreement, then the obligations and duties of the Remarketing Agent under this
Agreement shall be suspended until such default or event has been cured. The
Trust shall cause the Property Trustee to provide to the Remarketing Agent
notice of all such defaults and events of which the Property Trustee is aware,
and the Company shall cause the Indenture Trustee to provide to the Remarketing
Agent notice of all such defaults and events of which the Indenture Trustee is
aware.
SECTION 15. Indemnification. The Company shall indemnify and hold
harmless the Remarketing Agent and its officers and employees from and against
all actions, claims, damages, liabilities and losses, and costs and expenses
related thereto (including reasonable legal fees and costs) relating to or
arising out of actions or omissions in any capacity hereunder and in any
capacity as Calculation Agent under the Trust Agreement and the Indenture,
except actions, claims, damages, liabilities, losses, costs and expenses to the
extent caused by (a) the bad faith, gross negligence or wilful misconduct of
such indemnified party or (b) the breach by the Remarketing Agent of its
representations, warranties and covenants hereunder. This Section 15 shall
survive the termination of the Agreement, the Trust Agreement, the Indenture and
the payment in full of all obligations under the Preferred Securities or the
Senior Notes, as the case may be, and this Agreement, whether by purchase,
repurchase, redemption or otherwise.
SECTION 16. Remarketing Agent's Performance: Duty of Care; Power of
Attorney. The duties and obligations of the Remarketing Agent hereunder shall be
determined solely by the express provisions of this Agreement and the Secondary
Purchase Agreement.
The Remarketing Agent hereby accepts the obligation set forth in the
Trust Agreement and the Indenture to act as attorney-in-fact for the holders of
the Preferred Securities or Senior Notes, as the case may be.
SECTION 17. Expenses. The Company shall pay the reasonable expenses and
disbursements of the Remarketing Agent (including the reasonable fees of its
counsel) incurred in connection with any remarketing, including any Renewed
Remarketing and any Failed Remarketing, and the Company shall pay the
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reasonable expenses and disbursements of the Remarketing Agent (including the
reasonable fees of its counsel) in connection with the execution and delivery of
the Secondary Purchase Agreement.
SECTION 18. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without reference
to the choice of law rules thereof.
SECTION 19. Term of Agreement. Unless otherwise terminated in
accordance with the provisions hereof and except as otherwise provided herein,
this Agreement shall remain in full force and effect from the date hereof until
30 days after the earlier of (i) the date all Preferred Securities (or, if
applicable, Senior Notes) shall have been redeemed and (ii) the Reset Date in
connection with a Remarketing that is not a Failed Remarketing.
SECTION 20. Successors and Assigns. The rights and obligations of the
Company hereunder may not be assigned or delegated to any other person without
the prior written consent of the Remarketing Agent. Subject to the provisions of
Section 11, the rights and obligations of the Remarketing Agent hereunder may
not be assigned or delegated to any other person without the prior written
consent of the Company. This Agreement shall inure to the benefit of and be
binding upon the Trust, the Company and the Remarketing Agent and their
respective successors and assigns. The terms "successors" and "assigns" shall
not include any purchaser of Preferred Securities or Senior Notes merely as a
result of such purchase. This Agreement shall inure to the benefit of the
Holders of the Preferred Securities (or, if applicable, holders of the Senior
Notes).
SECTION 21. Headings. Section headings have been inserted in this
Agreement as a matter of convenience of reference only, and it is agreed that
such section headings are not a part of this Agreement and shall not be used in
the interpretation of any provision of this Agreement.
SECTION 22. Severability. If any provision of this Agreement shall be
held or deemed to be or shall, in fact, be invalid, inoperative or unenforceable
as applied in any particular case in any or all jurisdictions because it
conflicts with any provisions of any constitution, statute, rule or public
policy or for any other reason, such circumstances shall not have the effect of
rendering the provision in question invalid, inoperative or unenforceable in any
other case, circumstances or jurisdiction, or of rendering any other provision
or provisions of this Agreement invalid, inoperative or unenforceable to any
extent whatsoever.
SECTION 23. Counterparts. This Agreement may be executed in
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
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SECTION 24. Amendments. This Agreement may be amended by any instrument
in writing signed by the parties hereto; provided that any amendment to Section
5 shall require the consent of all Holders of the Preferred Securities (or,
following the distribution of Senior Notes to Holders of the Preferred
Securities upon termination of the Trust, the Senior Notes).
SECTION 25. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication, including telephone, telegraph or telecopy, and confirmed in
writing. All written notices and confirmations of notices by telecommunication
shall be deemed to have been validly given or made when delivered or mailed,
registered or certified mail, return receipt requested and postage prepaid. All
such notices, requests, consents or other communications shall be addressed as
follows:
if to the Company, to:
Xxx Communications, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
if to the Trust, to:
Cox RHINOS Trust
c/o Cox Communications, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
in each case, with a copy to:
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxx., X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile: 202-776-2222
Attention: Xxxxxx X. Xxxxxxx
and if to the Remarketing Agent, to:
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx
or to such other address as any of the above shall specify to the other in
writing.
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IN WITNESS WHEREOF, each of the Company, the Trust and the
Remarketing Agent has caused this 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/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
COX RHINOS TRUST
By: Xxx Communications, Inc.
as Sponsor
By: /S/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Administrative Trustee
Confirmed and Accepted
as of the date hereof:
BANC OF AMERICA
SECURITIES LLC, not individually,
but solely as Remarketing Agent
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
