EXHIBIT 10.42
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REMARKETING AGREEMENT
by and between
DAIN RAUSCHER INCORPORATED
and
PROVENA FOODS INC.
Dated as of October 1, 1998
$4,000,000
California Economic Development Financing Authority
Variable Rate Demand
Industrial Development Revenue Bonds,
Series 1998
(Provena Foods Inc. Project)
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REMARKETING AGREEMENT
THIS REMARKETING AGREEMENT (this "Remarketing Agreement"), dated as of October
1, 1998, by and between PROVENA FOODS INC., a California corporation (the
"Borrower") and DAIN RAUSCHER INCORPORATED (the "Remarketing Agent").
W I T N E S S E T H:
WHEREAS, the California Economic Development Financing Authority (the
"Authority") has issued its Variable Rate Demand Industrial Development Revenue
Bonds, Series 1998 (Provena Foods Inc. Project) in the aggregate principal
amount of $4,000,000 (the "Bonds"), pursuant to that certain Indenture of Trust,
dated as of October 1, 1998 (the "Indenture"), by and between the Authority and
U.S. Bank Trust National Association, as trustee (the "Trustee"); and
WHEREAS, to secure the payment of the principal of, interest on and purchase
price of the Bonds, Comerica Bank-California (the "Bank") has issued its
irrevocable direct pay letter of credit (the "Letter of Credit") to the Trustee;
and
WHEREAS, the Bonds are subject to purchase upon notice and delivery to the
Tender Agent (as such term is defined in the Indenture) as provided in the
Indenture; and
WHEREAS, the Remarketing Agent has been appointed (and the Remarketing Agent
by execution hereby accepts the appointment) as Remarketing Agent pursuant to
the Indenture; and
WHEREAS, the Borrower and the Remarketing Agent desire to make additional
provisions regarding the Remarketing Agent's role as Remarketing Agent for the
Bonds.
NOW, THEREFORE, for and in consideration of the covenants herein made, the
Borrower and the Remarketing Agent hereby agree as follows:
Section 1. Definitions. All capitalized terms used in this Remarketing
Agreement which are not otherwise defined herein shall have the meanings
ascribed to them in the Indenture.
Section 2. Duties.
(a) In reliance upon the representations and agreements, but subject
to the terms and conditions contained in the Indenture and in this
Remarketing Agreement, the Remarketing Agent has been appointed, and the
Remarketing Agent hereby accepts such appointment, as exclusive remarketing
agent in connection with the offering and sale of the Bonds from time to
time in the secondary market subsequent to the initial offering, issuance
and sale of the Bonds.
(b) It is understood and agreed that the Remarketing Agent's
responsibilities hereunder and under the Indenture will include (i)
exercising its best efforts in its sale of the Bonds (ii) effecting and
processing such purchases, (iii) billing and receiving payment of Bond
purchases, (iv) causing the proceeds from the secondary sale of the Bonds
to be transferred to the Tender Agent, (v) determining the Fixed Interest
Rate and the Weekly Interest Rates, and (vi) performing such other related
functions as may be provided for in the Indenture of the Remarketing Agent
or reasonably requested by the Borrower and agreed to by the Remarketing
Agent.
(c) The obligations of the Remarketing Agent hereunder and under the
Indenture, with respect to the date on which the Bonds are to be remarketed
pursuant to this Remarketing Agreement, are also subject to the further
condition that on and prior to such date there shall not have been any
change in the ownership of the Project except as permitted pursuant to the
Agreement and the Indenture, the Indenture, the Agreement and the Letter of
Credit shall be in full force and effect and shall not have been amended,
modified or supplemented in any way which would materially and adversely
affect the duties of the Remarketing Agent, except as may have been agreed
to in writing by the Remarketing Agent, and there shall be in full force
and effect such additional resolutions, agreements, certificates (including
such certificates as may be required by regulations for the Internal
Revenue Service in order to establish or preserve the tax-exempt character
of interest on the Bonds) and opinions, which resolutions, agreements,
certificates and opinions shall be reasonably satisfactory in form and
substance to the Trustee, to the Authority, to the Bank and to counsel for
the Remarketing Agent.
The Remarketing Agent will perform the duties specified as Remarketing Agent
under the Indenture and this Remarketing Agreement. In acting as Remarketing
Agent, the Remarketing Agent will act as agent and not as principal except as
expressly provided in this Section.
The Remarketing Agent may, if it determines to do so in its sole discretion,
buy as principal any such Bonds but it will not in any event be obligated to do
so.
Section 3. Disclosure Statement.
(a) If the Remarketing Agent reasonably determines that it is
necessary or desirable to amend or supplement the Official Statement (as
defined below) or to use a new disclosure statement ("Disclosure
Statement") in connection with its offering of the Bonds, the Remarketing
Agent will notify the Borrower and the Borrower will provide, or cause to
be provided to, the Remarketing Agent an amendment or supplement to the
Official Statement or a new Disclosure Statement satisfactory to the
Remarketing Agent and its counsel with respect to the Bonds. The Borrower
will supply, or cause to be supplied to, the Remarketing Agent with such
number of copies of the amendment or supplement to the Official Statement
or the new Disclosure Statement and documents related thereto as the
Remarketing Agent reasonably requests from time to time and will amend or
supplement the Official Statement or the Disclosure Statement (and/or the
documents incorporated by reference in it) so that at all times the
Official Statement or
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the Disclosure Statement and any documents related thereto will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements in such documents, in the light of the
circumstances under which they were made, not misleading. In addition, the
Borrower will take all steps reasonably requested by the Remarketing Agent
which the Remarketing Agent or its counsel may consider necessary or
desirable to register the sale of the Bonds by the Remarketing Agent under
any Federal or state securities law or to qualify the Indenture under the
Trust Indenture Act of 1939, as amended and as then in effect (the "Trust
Indenture Act"), and will provide the Remarketing Agent such officers'
certificates, counsel opinions, accountants' letters and other documents as
may be customary in similar transactions. If the Borrower does not perform
its obligations under this Section, the Remarketing Agent may immediately
cease to remarket the Bonds and, in such event, shall resign as Remarketing
Agent as provided herein.
(b) The Authority has previously prepared and delivered to the
Remarketing Agent a copy of the Official Statement, dated October 6, 1998
(the "Official Statement"), including financial and other information in
respect of the Authority, the Borrower and the Bank. The Authority has
authorized the use by the Remarketing Agent of the Official Statement in
connection with the remarketing of Bonds.
Section 4. Representations, Warranties, Covenants and Agreements of the
Remarketing Agent. The Remarketing Agent, by its acceptance hereof, represents,
warrants, covenants and agrees with the Borrower as follows:
(a) It is a member of the National Association of Securities Dealers,
having a capitalization of at least $15,000,000, otherwise meets the
requirements for the Remarketing Agent set forth in the Indenture, is
authorized by law to perform all duties imposed upon it by the Indenture
and this Remarketing Agreement and has full power and authority to take all
actions required or permitted to be taken by the Remarketing Agent
hereunder and under the Indenture.
(b) The execution and delivery of this Remarketing Agreement and the
consummation of the transactions contemplated herein and in the Indenture
will not conflict with or constitute on the part of the Remarketing Agent a
breach of or default under its charter documents, its bylaws, or any
statute, indenture, mortgage, deed of trust, lease, note agreement or other
agreement or instrument to which the Remarketing Agent is a party or by
which it or its properties are bound, or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Remarketing Agent or any of its activities or properties.
(c) This Remarketing Agreement has been duly authorized, executed and
delivered by the Remarketing Agent and this Remarketing Agreement is a
valid and binding obligation of the Remarketing Agent enforceable in
accordance with its terms.
(d) The Remarketing Agent will use its best efforts to remarket the
Bonds pursuant to this Remarketing Agreement and the Indenture.
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Section 5. Representation, Warranties, Covenants and Agreements of the
Borrower. The representations, warranties and agreements of the Borrower set
forth in the Letter of Representation, dated October 6, 1998, from the Borrower
to Dain Rauscher Incorporated, as the underwriter of the Bonds, the Authority
and the Treasurer of the State of California attached to the Purchase Contract
are hereby incorporated herein as being made to the Remarketing Agent as of the
date hereof.
Section 6. Conditions to Remarketing Agent's Obligations. The obligations
of the Remarketing Agent under this Remarketing Agreement have been undertaken
in reliance on, and shall be subject to, the due performance by the Borrower of
its obligations and agreements to be performed hereunder and to the accuracy of
and compliance with the representations, warranties, covenants and agreements of
the Borrower contained herein, on and as of the date of delivery of this
Remarketing Agreement. The obligations of the Remarketing Agent on and as of
each date on which Bonds are to be offered and sold pursuant to this Remarketing
Agreement are also subject to the following further conditions:
(a) Each of the Indenture, the Agreement, the Letter of Credit, the
Reimbursement Agreement and all other documents and agreements referenced
in the Indenture or relating to the Bonds shall be in full force and effect
and shall not have been amended, modified or supplemented in any way which
would materially and adversely affect the Bonds, except as may have been
agreed to in writing by the Remarketing Agent, and there shall be in full
force and effect such additional resolutions, agreements, certificates and
opinions, which resolutions, agreements, certificates and opinions shall be
satisfactory in form and substance to the Remarketing Agent; and
(b) No Event of Default shall have occurred and be continuing and no
event shall have occurred and be continuing which, with the passage of time
or the giving of notice or both, would constitute such an Event of Default.
Section 7. Indemnification and Contribution.
(a) To the extent permitted by law, the Borrower will indemnify and
hold harmless the Remarketing Agent, each of its directors, officers and
employees and each person who controls the Remarketing Agent within the
meaning of Section 15 of the Securities Act of 1933, as amended (herein
called the "Securities Act" and any such person being herein sometimes
called 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
shall 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, but only to the extent that such losses, claims,
damages, liabilities or actions arise out of or are based upon (i) an
allegation or determination that the Bonds or the Letter of Credit should
have been registered under the Securities Act or the Indenture should have
been qualified under the Trust Indenture Act, or (ii) any untrue statement
or alleged untrue statement of a material fact contained in the Official
Statement or any Disclosure
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Statement or any amendment thereof or supplement thereto, or the omission
or alleged omission to state therein a material fact necessary to make the
statements therein not misleading, but the Borrower shall not be liable in
any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Borrower or the Authority by the Remarketing Agent specifically for use in
connection with the preparation thereof, or if the person asserting any
such loss, claim, damage or liability purchased Bonds from the Remarketing
Agent, if delivery to such person of the Official Statement or the
Disclosure Statement or any amendment or supplement to it would have been a
valid defense to the action from which such loss, claim, damage or
liability arose and if the same was not delivered to such person by or on
behalf of the Remarketing Agent. This indemnity agreement shall not be
construed as a limitation on any other liability which the Borrower may
otherwise have to any Indemnified Party. The Remarketing Agent may, in its
sole discretion, pursue any rights it may have against any party other than
the Borrower to recover any losses, damages or liabilities covered by this
Section 7(a); provided, however, that the Borrower's liability under this
Section 7(a) shall not be limited by the availability of such rights or the
Remarketing Agent's actions with respect to such rights.
(b) An Indemnified Party shall, promptly after the receipt of notice
of the commencement of any action against such Indemnified Party in respect
of which indemnification may be sought against the Borrower (the
"Indemnifying Party"), notify the Indemnifying Party in writing of the
commencement thereof. In case any such action shall be brought against an
Indemnified Party and such Indemnified Party shall notify the Indemnifying
Party, the Indemnifying Party may, or if so requested by such Indemnified
Party shall, participate therein or assume the defense thereof, with
counsel reasonably satisfactory to such Indemnified Party, and after notice
from the Indemnifying Party to such Indemnified Party of an election so as
to assume the defense thereof, such Indemnified Party shall reasonably
cooperate in the defense thereof, including without limitation, the
settlement of outstanding claims, and the Indemnifying Party will not be
liable to such Indemnified Party under this Section 7 for any legal or
other expenses subsequently incurred by such Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation incurred with the consent of the Indemnifying Party, which
consent shall not be unreasonably withheld; provided, however, that unless
and until the Indemnifying Party assumes the defense of any such action at
the request of such Indemnified Party, the Indemnifying Party shall have
the right to participate at its own expense in the defense of any such
action. If the Indemnifying Party shall not have employed counsel to have
charge of the defense of any such action or if any Indemnified Party shall
have reasonably concluded that there may be defenses available to it or
them which are different from or additional to those available to the
Indemnifying Party (in which case the Indemnifying Party shall not have the
right to direct the defense of such action on behalf of such Indemnified
Party), legal and other expenses incurred by such Indemnified Party shall
be borne by the Indemnifying Party. Any obligation under this Section of an
Indemnifying Party to
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reimburse an Indemnified Party for expenses includes the obligation to make
advances to the Indemnified Party to cover such expenses in reasonable
amounts and at reasonable periodic intervals not more often than monthly as
requested by the Indemnified Party. Notwithstanding the foregoing, the
Indemnifying Party shall not be liable for any settlement of any action or
claim effected without its consent, which consent shall not be unreasonably
withheld.
(c) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
this Section is due in accordance with its terms but is for any reason held
by a court to be unavailable from the Borrower on grounds of public policy
or otherwise, the Borrower and the Remarketing Agent shall contribute to
the aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or
defending same) to which the Borrower and the Remarketing Agent may be
subject (i) in such proportion as is appropriate to reflect the relative
benefits received by the Borrower on the one hand and the Remarketing Agent
on the other from the remarketing of the Bonds 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 Borrower
and the Remarketing Agent in connection with the failure to register or
qualify certain instruments as described in Section 7(a)(i) or in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant
considerations. The relative benefits received by the Borrower on the one
hand and the Remarketing Agent on the other shall be deemed to be in the
same proportion as the aggregate principal amount of the Bonds remarketed
pursuant to this Remarketing Agreement bear to the total remarketing fees
received by the Remarketing Agent. The relative fault of the Borrower on
the one hand and of the Remarketing Agent on the other 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 Borrower or by the
Remarketing Agent and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission; provided, however, in the case of an allegation or determination
that the Bonds or the Letter of Credit should have been registered under
the Securities Act or the Indenture should have been qualified under the
Trust Indenture Act, the fault shall be deemed to be entirely that of the
Borrower. The amount paid or payable by a party as a result of the losses,
claims, damages and liabilities referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim.
(d) The Borrower and the Remarketing Agent agree that it would not be
just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in
the immediately preceding paragraph. Notwithstanding the provisions of this
Section 7, the Remarketing Agent shall not be
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required to contribute any amount in excess of the remarketing fee
applicable to the Bonds remarketed pursuant to this Remarketing Agreement.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who is not guilty of such fraudulent misrepresentation.
(e) For purposes of this Section 7, each person who controls the
Remarketing Agent within the meaning of Section 15 of the Securities Act
shall have the same rights as the Remarketing Agent. Any party entitled to
contribution shall, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission so to notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than under
paragraph (d) above.
Section 8. Fees and Expenses. In consideration of the Remarketing Agent's
services under this Remarketing Agreement, the Borrower will pay the Remarketing
Agent an annual amount equal to an aggregate of 1/8 of 1.0% of the aggregate
principal amount of Bonds outstanding under the Indenture, payable semiannually
in arrears on April 1 and October 1, commencing on April 1, 1999 and computed on
the basis of the actual number of days elapsed during such calculation period
and the aggregate principal amount of the Bonds outstanding during such
calculation period. The Borrower also will pay all expenses in connection with
the preparation of any amendment or supplement to the Official Statement or the
Disclosure Statement, the registration of the Bonds and any other documents
relating to the Bonds required to comply with applicable securities laws or
required to comply with the Trust Indenture Act and will reimburse the
Remarketing Agent for all of its reasonable direct out-of-pocket expenses
incurred by it as Remarketing Agent under this Remarketing Agreement and the
Indenture, including counsel fees and disbursements.
Section 9. Dealing in Bonds by Paying Agent, Tender Agent, Bank, and
Remarketing Agent. The Trustee, the Paying Agent, the Tender Agent, the Bank,
or the Remarketing Agent, in their respective individual capacities, may in good
faith buy, sell, own, hold and deal in any of the Bonds, and may join in any
action which Bond owners may be entitled to take with like effect as if it did
not act in any capacity hereunder. The Trustee, the Paying Agent, the Tender
Agent, the Bank, or the Remarketing Agent, in their respective individual
capacities, either as principal or agent, may also engage in or be interested in
any financial or other transaction with the Authority, and may act as
depositary, trustee or agent for other obligations of the Authority as freely as
if it did not act in any capacity hereunder.
Section 10. Intention of Parties. It is the intention of the parties hereto
that no purchase, sale or transfer of any Bonds, as herein and in the Indenture
provided, shall constitute or be construed to be extinguishment of any Bonds or
the indebtedness represented thereby or the reissuance of any Bonds.
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Section 11. Fails. The Remarketing Agent will not be liable to the
Authority, the Borrower, the Trustee, the Tender Agent, or the Bank on account
of the failure of any person to whom the Remarketing Agent has sold a Bond to
pay for such Bond or to deliver any document in respect of the sale. It is
understood and agreed that the Remarketing Agent shall not be obligated to
advance its own funds to purchase, or to effect the purchase of, any Bonds.
Section 12. Remarketing Agent's Performance.
(a) The duties and obligations of the Remarketing Agent as Remarketing
Agent shall be determined solely by the express provisions of this
Remarketing Agreement and the Indenture, and the Remarketing Agent shall
not be responsible for the performance of any duties and obligations other
than as are specifically set forth in this Remarketing Agreement and the
Indenture, and no implied covenants or obligations shall be read into this
Remarketing Agreement or the Indenture against the Remarketing Agent.
(b) The Remarketing Agent may conclusively rely upon any notice or
document given or furnished to the Remarketing Agent and conforming to the
requirements of this Remarketing Agreement or the Indenture and shall be
protected in acting upon any such notice or document reasonably believed by
it to be genuine and to have been given, signed or presented by the proper
party or parties.
(c) The Remarketing Agent shall not be liable for any actions taken or
omitted to be taken pursuant to this Remarketing Agreement, except for its
own negligence or willful misconduct.
Section 13. Termination.
(a) This Remarketing Agreement will terminate automatically at such
time as all of the Bonds have been paid or deemed paid under the Indenture
and upon the effective resignation or removal of the Remarketing Agent as
Remarketing Agent in accordance with the Indenture. The Remarketing Agent
will resign as Remarketing Agent under the Remarketing Agreement if
requested to do so by the Borrower and the Authority in writing and may
resign at any time upon forty-five (45) days written notice delivered to
the Authority, the Borrower, the Tender Agent, the Bank, the Trustee,
Standard & Poor's Ratings Services and Moody's Investors Service, to the
extent each such rating agency is then rating the Bonds.
(b) In addition to the provisions of paragraph (a) of this Section,
the Remarketing Agent may terminate its obligations under this Remarketing
Agreement at any time by notifying the Borrower in writing or by telegram,
telex or other electronic communications of its election so to do, if:
(i) Legislation shall be favorably reported, recommended by
committee or enacted by the Congress or adopted by either House
thereof or a decision by a Court of the United States of America or
the United States Tax
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Court shall be rendered, or a ruling, regulation
or official statement by or on behalf of the Treasury Department of
the United States of America, the Internal Revenue Service or other
governmental agency shall be made, with respect to federal taxation of
receipts, revenues or other income of the general character expected
to be derived by the Authority or of interest received on bonds of the
general character of the Bonds or which would have the effect of
changing directly or indirectly the federal income tax consequences of
interest on bonds of the general character of the Bonds in the hands
of the holders thereof, which, in the opinion of the Remarketing
Agent, materially adversely affects the market price of the Bonds;
(ii) Legislation shall be introduced by committee, by amendment or
otherwise, in, or be enacted by, the House of Representatives or the
Senate of the Congress of the United States, or a decision by a court
of the United States shall be rendered, or a stop order, ruling,
regulation or official statement by, or on behalf of, the United
States Securities and Exchange Commission or other governmental agency
having jurisdiction of the subject matter shall be made or proposed,
to the effect that the offering or sale of obligations of the general
character of the Bonds, as contemplated hereby, is or would be in
violation of any provision of the Securities Act, or the Securities
Exchange Act of 1934, as amended and as then in effect, or the Trust
Indenture Act, or with the purpose or effect of otherwise prohibiting
the offering or sale of obligations of the general character of the
Bonds, or the Bonds, as contemplated hereby;
(iii) Any information shall have become known, which, in the
Remarketing Agent's reasonable opinion, makes untrue, incorrect or
misleading in any material respect any statement or information
contained in the Official Statement or a Disclosure Statement, as the
information contained therein has been supplemented or amended by
other information, as of the date furnished or supplemented to the
Remarketing Agent in accordance with Section 3 hereof, or causes the
Official Statement or the Disclosure Statement, as so supplemented or
amended, to contain an untrue, incorrect or misleading statement of a
material fact or to omit to state a material fact required to be
stated therein or necessary to make the statements made therein, in
light of the circumstances under which they were made, not misleading;
(iv) Except as provided in clause (i) hereof, any legislation,
resolution, ordinance, rule or regulation shall be introduced in, or
be enacted by, any governmental body, department or agency of the
United States or the State of California shall be rendered which, in
the Remarketing Agent's reasonable opinion, materially adversely
affects the marketability of the Bonds;
(v) Additional material restrictions not in force as of the date
hereof shall have been imposed upon trading in securities generally by
any governmental authority or by any national securities exchange;
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(vi) Any governmental authority shall impose, as to the Bonds, or
obligations of the general character of the Bonds, any material
restrictions not now in force, or increase materially those now in
force;
(vii) A general banking moratorium shall have been established by
federal, New York or California authorities;
(viii) Any rating of the Bonds shall have been downgraded or
withdrawn by a national rating service, which, in the Remarketing
Agent's reasonable opinion, materially adversely affects the
marketability of the Bonds;
(ix) A war involving the United States shall have been declared,
or any existing conflict involving the armed forces of the United
States shall have escalated, or any other national emergency relating
to the effective operation of government or the financial community
shall have occurred, which, in the Remarketing Agent's reasonable
opinion, materially adversely affects the marketability of the Bonds;
(x) An event, including, without limitation, the bankruptcy or
default of any other issuer of or obligor on obligations of the
general character of the Bonds or on similar commercial paper, shall
have occurred which, in the opinion of the Remarketing Agent, makes
the marketability of obligations of the general character of the Bonds
impossible over an extended period of time.
The provisions of Section 7 shall survive the termination of this
Remarketing Agreement and the payment or defeasance of the Bonds.
Section 14. Miscellaneous.
(a) Except as otherwise provided, any notice or other communication
herein required or permitted to be given shall be in writing, by facsimile
transmission or by telephone with subsequent written confirmation and may
be personally served or sent by United States mail, first class mail
postage prepaid, and shall be deemed to have been given upon receipt by the
party notified. For the purposes hereof, the address of the parties (until
notice of a change thereof is delivered as provided in this Section 14(a)
shall be as follows:
Remarketing Agent: Dain Rauscher Incorporated
2711 N. Haskell Avenue, Suite 2400
Dallas, Texas 75204
Attention: Fixed Income Banking
(214) 989-1834
Fax: (214) 989-1842
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Authority: California Economic Development
Financing Authority
801 K Street, Suite 1700
Sacramento, California 95814
Attention: Bond Manager
(916) 322-8520
Fax: (916) 322-7214
Bank: Comerica Bank-California
333 W. Santa Clara Street
San Jose, California 95113
Attention: Michael Archer
(408) 556-5361
Fax: (408) 556-5395
Borrower: Provena Foods Inc.
5010 Eucalyptus Avenue
Chino, California 91710
Attention: Chief Financial Officer
Phone: (909) 627-1082
Fax: (909) 627-7315
Trustee: U.S. Bank Trust National Association
One California Street, 4th Floor
San Francisco, California 94111
Attention: Corporate Trust Department
(415) 273-4500
Fax: (415) 273-4590
Tender Agent: U.S. Bank Trust National Association
One California Street, 4th Floor
San Francisco, California 94111
Attention: Corporate Trust Department
(415) 273-4500
Fax: (415) 273-4590
The Remarketing Agent, the Authority, the Borrower, the Trustee, the
Bank and the Tender Agent may, by notice given under this Remarketing
Agreement, designate other addresses to which notices or other
communications shall be directed.
(b) This Remarketing Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and
assigns. The terms "successors" and "assigns" shall not include any
purchaser of any of the Bonds merely because of such purchase.
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(c) All of the representations, warranties and covenants made in this
Remarketing Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any party
hereto, (ii) delivery of and any payment for any Bonds hereunder, or (iii)
termination or cancellation of this Remarketing Agreement.
(d) Section headings have been inserted in this Remarketing Agreement
as a matter of convenience of reference only, and it is agreed that such
section headings are not a part of this Remarketing Agreement and will not
be used in the interpretation of any provisions of this Remarketing
Agreement.
(e) If any provision of this Remarketing 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 jurisdiction or jurisdictions, or in
all jurisdictions because it conflicts with any provisions of any
constitution, statute, rule or public policy, or any other reason, such
circumstances shall not have the effect of rendering the provisions in
question invalid, inoperative or unenforceable in any other case or
circumstance, or of rendering any other provisions of this Remarketing
Agreement invalid, inoperative or unenforceable to any extent whatsoever.
(f) This Remarketing Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of
which shall constitute one and the same document.
(g) The terms of this Remarketing Agreement shall not be waived,
altered, modified, amended or supplemented in any manner whatsoever except
by written instrument signed by all of the parties hereto.
(h) This Remarketing Agreement shall be governed by and construed in
accordance with the laws of the State of California.
12
IN WITNESS WHEREOF, the Remarketing Agent and the Borrower have caused this
Remarketing Agreement to be signed in their names by the undersigned officers,
thereunto duly authorized, all as of the day and year first above written.
DAIN RAUSCHER INCORPORATED
By /s/ John [Illegible Signature]
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Managing Director
PROVENA FOODS INC.
By /s/ Thomas J. Mulroney
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Authorized Signatory
[Signature Page to Remarketing Agreement]