Exhibit 10.58
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BETWEEN
PRIORITY FULFILLMENT SERVICES, INC.
(THE "OBLIGOR")
AND
COMERICA SECURITIES
(THE "REMARKETING AGENT")
DATED AS OF NOVEMBER 1, 2004
RELATING TO
$5,000,000
MISSISSIPPI BUSINESS FINANCE CORPORATION
TAXABLE VARIABLE RATE DEMAND LIMITED OBLIGATION
REVENUE BONDS, SERIES 2004
(PRIORITY FULFILLMENT SERVICES, INC. PROJECT)
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TABLE OF CONTENTS
PAGE
Section 1. Duties................................................................ 1
Section 2. Disclosure Statement.................................................. 2
Section 3. Indemnification and Contribution...................................... 2
Section 4. Fees and Expenses..................................................... 4
Section 5. Remarketing Agent Not Liable for Failures by Purchasers of Bonds...... 4
Section 6. Representations and Warranties of the Obligor......................... 4
Section 7. Termination........................................................... 5
Section 8. Miscellaneous......................................................... 5
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THIS (the "Agreement") dated as of November 1, 2004
by and between PRIORITY FULFILLMENT SERVICES, INC., a Delaware corporation (the
"Obligor") and COMERICA SECURITIES (the "Remarketing Agent").
WHEREAS, the Mississippi Business Finance Corporation (the "Issuer") has
appointed the Remarketing Agent (and the Remarketing Agent hereby accepts the
appointment) as Remarketing Agent under the Trust Indenture dated as of the date
of this Agreement (the "Indenture") between the Issuer and U.S. Bank National
Association, as trustee (the "Trustee"), relating to the Issuer's $5,000,000
principal amount Taxable Variable Rate Demand Limited Obligation Revenue Bonds,
Series 2004 (Priority Fulfillment Services, Inc. Project) (the "Bonds"); and
WHEREAS, the Obligor has entered into a Loan Agreement dated as of the
date of this Agreement (the "Loan Agreement") between the Issuer and the
Obligor; and
WHEREAS, the Remarketing Agent has been appointed by the Issuer to use its
best efforts to remarket the Bonds subject to optional or mandatory purchase and
to determine the interest rate necessary to remarket the Bonds at par; and
WHEREAS, the Obligor and Remarketing Agent desire to make additional
provisions regarding the Remarketing Agent's role as Remarketing Agent for the
Bonds with respect to its obligations described in Section 203 of the Indenture.
Terms used in this Agreement without being defined have the meanings given them
in the Indenture.
NOW, THEREFORE, the Obligor and Remarketing Agent hereby agrees as
follows:
SECTION 1. DUTIES.
(a) The Remarketing Agent will perform the duties specified as
Remarketing Agent under the Indenture, including, but not limited to, the
determination of interest rates as set forth in Section 110 of the Indenture and
the remarketing of the Bonds as set forth in Section 203 of the Indenture.
Unless the Remarketing Agent is otherwise directed in writing by the Obligor and
except as provided in the next paragraph, the Remarketing Agent shall use its
best efforts to remarket Bonds subject to optional or mandatory purchase under
Sections 201 and 202 of the Indenture, respectively. Bonds which are subject to
mandatory purchase on the Conversion Date, a proposed Conversion Date or a
Substitution Date shall be remarketed by the Remarketing Agent only to a buyer
to whom the Remarketing Agent has delivered, at the time of such remarketing, a
copy of the notice of conversion or notice of delivery of a Substitute Credit
Facility, as applicable, pursuant to Section 113(b) of the Indenture. In the
event the Bonds are remarketed pursuant to a mandatory purchase on the
Conversion Date, a proposed Conversion Date or a Substitution Date, the
Remarketing Agent shall be entitled to a fee (mutually agreed upon with the
Obligor prior to the commencement of the remarketing) in addition to the annual
remarketing fee received pursuant to Section 4 hereof. In acting as Remarketing
Agent, the
Remarketing Agent will act as agent and not as principal except as expressly
provided in this Section 1.
(b) The Remarketing Agent may, if it determines to do so in its sole
discretion, buy as principal, but it will not in any event be obligated to do
so, and if it buys Bonds it will have the same rights as would any other person
holding the Bonds.
SECTION 2. DISCLOSURE STATEMENT. If the Remarketing Agent determines that
it is necessary or desirable to use a disclosure statement in connection with
its offering of Bonds (a "Disclosure Statement"), and in any event upon
conversion of the interest rate on the Bonds to a Fixed Rate, the Remarketing
Agent will notify the Obligor and the Obligor will provide the Remarketing Agent
with a Disclosure Statement satisfactory to the Remarketing Agent and its
Counsel in respect of the Bonds. The Obligor will supply the Remarketing Agent,
at the Obligor's expense, with such number of copies of the Disclosure Statement
as the Remarketing Agent requests from time to time and will amend the document
with respect to the Obligor and any summary of documents the amendment of which
was approved by the Obligor (and/or the documents incorporated by reference in
it) so that at all times the document will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
in the document, in light of the circumstances under which they were made, not
misleading.
SECTION 3. INDEMNIFICATION AND CONTRIBUTION.
(a) The Obligor will indemnify and hold harmless the Remarketing
Agent, each of its directors, officers, employees and agents and each person who
controls the Remarketing Agent within the meaning of Section 15 of the
Securities Act of 1933, as amended (such Act being herein called the "Act" and
any such person being herein sometimes called for purposes of this paragraph (a)
an "Indemnified Party"), against any and all losses, claims, damages or
liabilities, joint or several, to which such Indemnified Party may become
subject under any statute or at law or in equity or otherwise, and will
reimburse any such Indemnified Party for any legal or other expenses incurred by
it in connection with investigating any claims against it and defending any
actions, insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon any untrue statements, or alleged untrue statement, of
a material fact with respect to the Obligor contained in any Disclosure
Statement referred to in Section 2 hereof or any amendment or supplement
thereto, or any portion of the Disclosure Statement under the headings
"Introductory Statement," "The Obligor and the Use of Proceeds," "The Bonds"
(other than the information under the sub-heading "Book-Entry System"), "Sources
of Payment and Security," "The Letter of Credit," "The Loan Agreement," "The
Trust Indenture," "The Reimbursement Agreement," and "The Pledge and Security
Agreement," or the omission or alleged omission to state therein a material fact
necessary to make the statements therein with respect to the Obligor or under
such headings not misleading. This indemnity agreement will not be construed as
a limitation on any other liability which the Obligor may otherwise have to any
Indemnified Party, but in no event shall the Obligor be obligated for double
indemnification. The duty of the Obligor to indemnify and hold the Issuer and
its directors, officers, employees and agents harmless shall be governed by
Section 5.4 of the Loan Agreement, the provisions of which are incorporated
herein by this reference.
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(b) The Remarketing Agent will indemnify and hold harmless the
Obligor, each of its directors, officers, partners, employees and agents and
each person who controls the Obligor within the meaning of Section 15 of the Act
(for purposes of this paragraph (b), an "Indemnified Party") to the same extent
as the foregoing indemnity in paragraph (a) from the Obligor to the Remarketing
Agent, but only with reference to written information, if any, relating to the
Remarketing Agent furnished to the Obligor by the Remarketing Agent specifically
for use in the preparation of a Disclosure Statement. This indemnity agreement
shall not be construed as a limitation on any other liability which the
Remarketing Agent may otherwise have to any Indemnified Party, but in no event
shall the Remarketing Agent be obligated for double indemnification.
(c) An Indemnified Party (as defined in paragraph (a) or paragraph
(b) of this Section 3) will, promptly after receiving notice of the commencement
of any action against such Indemnified Party in respect of which indemnification
may be sought against the Obligor or the Remarketing Agent, as the case may be
(the "Indemnifying Party"), notify the Indemnifying Party in writing of the
commencement of the action. Failure of the Indemnified Party to give such notice
will reduce the liability of the Indemnifying Party under this Agreement by the
amount of the damages attributable to the failure to give the notice; but the
failure will not relieve the Indemnifying Party from any liability which it may
have to such Indemnified Party otherwise than under the indemnity agreement in
this Section 3. If such action is brought against an Indemnified Party and such
Indemnified Party notifies the Indemnifying Party of the commencement of the
action, the Indemnifying Party may, or if so requested by the Indemnified Party
shall, participate in it or assume its defense, with counsel reasonably
satisfactory to the Indemnified Party, and after notice from the Indemnifying
Party to the Indemnified Party of an election so to assume the defense, the
Indemnifying Party will not be liable to the Indemnified Party under this
Section 3 for any legal or other expenses subsequently incurred by such
Indemnified Party in connection with the defense other than reasonable costs of
investigation. If the Indemnifying Party does not employ counsel to take charge
of the defense or if any Indemnified Party reasonably concludes that there may
be defenses available to it which are different from or in addition to those
available to the Indemnifying Party (in which case the Indemnifying Party will
not have the right to direct the defense of such action on behalf of such
Indemnified Party), legal and other expenses reasonably incurred by such
Indemnified Party will be paid by the Indemnifying Party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 3 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Obligor on grounds of policy or otherwise, the
Obligor and Remarketing Agent shall contribute to the total losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending the same) to which the Obligor and
Remarketing Agent may be subject in such proportion so that the Remarketing
Agent is responsible for that portion represented by the percentage that the fee
to be paid to the Remarketing Agent under Section 4 hereof bears to the
principal amount of the Bonds remarketed under this Agreement and the Obligor is
responsible for the balance; but (i) in no case will the Remarketing Agent be
responsible for any amount in excess of the fee applicable to the Bonds
remarketed by the
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Remarketing Agent under this Agreement and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of section 11(f) of the Act) will be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 3(d), each person who controls
the Remarketing Agent within the meaning of Section 15 of the Act will have the
same rights to contribution as the Remarketing Agent and each person who
controls the Obligor within the meaning of Section 15 of the Act and each
officer, each director and each partner of the Obligor will have the same rights
to contribute as the Obligor, subject in each case to clause (i) and (ii) of
this Section 3(d). Any party entitled to contribution will, promptly after
receiving notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made under this
Section 3(d), notify each party from whom contribution may be sought, but the
failure to notify such party shall not relieve any party from whom contribution
may be sought from any other obligation it may have under this Agreement or
otherwise than under this Section 3(d).
SECTION 4. FEES AND EXPENSES. In consideration of the Remarketing Agent's
services under this Agreement, the Obligor will pay the Remarketing Agent a fee
of 1/4 of 1% of the aggregate principal amount of Bonds at closing. Thereafter,
the Obligor will pay in advance a non-refundable fee of 1/8 of 1% per annum of
the aggregate principal amount of the Bonds outstanding payable on December 1 of
each year (taking into account any payment of principal on such December 1)
commencing December 1, 2005. The Obligor will also pay all expenses in
connection with the delivery of remarketed Bonds and with preparing a disclosure
document under Section 2 hereof and will reimburse the Remarketing Agent for all
of its direct out-of-pocket expenses incurred by it as Remarketing Agent or
otherwise under this Agreement, including reasonable Counsel fees and
disbursements.
SECTION 5. REMARKETING AGENT NOT LIABLE FOR FAILURES BY PURCHASERS OF
BONDS. The Remarketing Agent will not be liable to the Obligor on account of the
failure of any person to whom the Remarketing Agent has sold a Bond to pay for
it or to deliver any document in respect of the sale.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE OBLIGOR. The Obligor
represents, warrants and covenants to and with the Remarketing Agent as follows:
(a) All representations and warranties of the Obligor in the
Placement Agreement dated as of November 1, 2004, among the Remarketing Agent,
the Issuer and the Obligor (the "Placement Agreement") are true and correct as
though made at and as of the date hereof.
(b) The Obligor is fully empowered to enter into and perform all
agreements on its part herein contained; the Obligor has been authorized to
enter into and deliver this Agreement (by all necessary and proper legal
action); and the execution and delivery by it of this Agreement and the
performance of the agreements herein contained do not contravene or constitute a
default under any agreement, indenture, mortgage, loan agreement, commitment,
provision of its charter documents, or other existing requirements of law or
regulation or any other agreement of any kind to which it is a party or by which
it is or may be bound.
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SECTION 7. TERMINATION. This Agreement will terminate upon the effective
resignation or removal of the Remarketing Agent as Remarketing Agent in
accordance with Section 911 of the Indenture. The Remarketing Agent will resign
as Remarketing Agent under this Agreement if requested by the Obligor in writing
upon 30 days' prior written notice. Following termination, the provisions of
Section 3 will continue in effect, and each party will pay the other any amounts
owing at the time of termination.
SECTION 8. MISCELLANEOUS.
(a) This Agreement will be governed by the laws of the State of
Mississippi.
(b) Notices will be given to the following addresses until a party
designates a new address in writing:
If to the Obligor:
Priority Fulfillment Services, Inc.
000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxx
If to the Remarketing Agent:
Comerica Securities
000 X. Xxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, XX 00000-0000
Attn: Institutional Sales
(c) Nothing contained in this Agreement shall be deemed to create
any employment relationship between the parties hereto or to create any
fiduciary obligations of the Remarketing Agent to the Obligor except as
expressly provided herein.
(d) This Agreement may be amended from time to time by an instrument
in writing executed by the parties hereto.
(e) Section headings are included herein for convenience of
reference only and shall not be considered a part of this Agreement for any
purpose.
(f) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating any
other provision hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
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(g) The Remarketing Agent, in its individual capacity, may in good
faith buy, sell, own, hold or deal in any of the Bonds, including Bonds which
are remarketed, and may join in any action which any Bondholder may be entitled
to take with like effect as if it did not act in any capacity hereunder. The
Remarketing Agent, in its individual capacity, either as principal or agent, may
also engage or be interested in any financial or other transaction with the
Issuer or Obligor but it is understood and agreed that funds for the purchase of
Bonds which are remarketed shall come only from the purchasers of Bonds which
are remarketed or from the Obligor (including pursuant to any Credit Facility or
Substitute Credit Facility) and not from the Remarketing Agent.
(h) This Agreement may be executed in any number of counterparts,
all of which shall be deemed originals hereof.
[THE BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGE TO FOLLOW.]
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Signature Page
COMERICA SECURITIES
"Remarketing Agent"
By: ________________________________
Xxxxxxx X. Xxxx
Its:Managing Director
PRIORITY FULFILLMENT SERVICES, INC.
"Obligor"
By: ________________________________
Xxxxxx X. Xxxxxx
Its:Chief Financial Officer
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