1
EXHIBIT 10.73
REMARKETING AGREEMENT
This Remarketing Agreement made and entered into as of April 23, 1997
among LaSalle National Bank, a national banking corporation (the "Remarketing
Agent"), The Industrial Development Board of the City of Demopolis, a public
corporation under the laws of Alabama (the "Issuer"), and McClain of Alabama,
Inc., a Michigan corporation ("Company").
WITNESSETH:
WHEREAS, the Issuer has authorized the issuance of its $5,225,000 The
Industrial Development Board of the City of Demopolis Industrial Development
Revenue Bonds, Series 1997 (McClain of Alabama, Inc. Project) (the "Bonds") to
finance the acquisition, construction and equipping of a manufacturing facility
that will be leased by the Issuer to the Company pursuant to the Lease
Agreement, dated as of April 1, 1997 by and between the Issuer and the Company
(the "Lease Agreement"); and
WHEREAS, the Bonds are subject to purchase upon optional and mandatory
tender upon notice and delivery, pursuant to the provisions of the Trust
Indenture, dated as of April 1, 1997 (the "Indenture"), by and between the
Issuer and LaSalle National Bank, a national banking corporation as trustee
(the "Trustee"); and
WHEREAS, LaSalle National Bank, as placement agent (the "Placement
Agent"), has agreed to arrange for the placement of the Bonds upon the initial
delivery thereof pursuant to the terms of a Placement Agency Agreement, dated
as of April 23, 1997 among the Placement Agent, the Company and the Issuer; and
WHEREAS, the Company and the Issuer desire that the Remarketing Agent
provide a mechanism for remarketing the Bonds according to the terms and
subject to the conditions described herein and in the Indenture;
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions herein set forth, the parties agree as follows:
1. Definitions. All capitalized terms not defined herein shall
have the meanings ascribed to them in the Indenture unless a different meaning
clearly appears from the context.
2. Appointment, Resignation and Removal of Remarketing Agent,
Responsibilities of Remarketing Agent.
(a) In reliance upon the representations and agreements but
subject to the terms and conditions contained in the Indenture
and in this Agreement, the Company and the Issuer appoint the
Remarketing Agent, and the Remarketing Agent accepts appointment, as
exclusive Remarketing Agent in connection with the remarketing of the
Bonds from time to
2
time in the secondary market subsequent to the initial offering,
issuance and delivery of the Bonds.
(b) The Indenture sets forth rights of, and duties and
obligations imposed on, the Remarketing Agent in connection with the
remarketing of the Bonds. The parties hereto agree that the
provisions of the Indenture relating to the Remarketing Agent shall be
incorporated herein by reference and be made a part hereof as if fully
set forth herein, and the Remarketing Agent accepts such duties and
obligations imposed pursuant to the Indenture.
(c) The Remarketing Agent will keep such books and records
as shall be consistent with prudent industry practice and will
summarize (i) the principal amount of the Bonds, if any, remarketed by
it pursuant to this Agreement and the Indenture, and (ii) the interest
rate on the Bonds for each Variable Rate Period and Term Rate Period
determined pursuant to and in accordance with the Indenture and
deliver such summary on a monthly basis to the Company, the Issuer and
Standard Federal Bank, as issuer of the Initial Letter of Credit (the
"Credit Obligor").
(d) The Remarketing Agent may at any time resign and be
discharged of the duties and obligations created hereby and by the
Indenture by notifying the Issuer, the Trustee, the Tender Agent, if
any, the Credit Obligor and the Company at least 30 days before the
effective date of such resignation. The Company, with the consent of
the Credit Obligor and the Issuer, may remove the Remarketing Agent,
and upon the removal or resignation of the Remarketing Agent may, with
the consent of the Credit Obligor and the Issuer, appoint a successor
by notifying the Remarketing Agent and the Trustee. No removal or
resignation shall be effective until a successor Remarketing Agent has
delivered an acceptance of its appointment to the Trustee. Any such
successor Remarketing Agent, upon its appointment pursuant to the
terms and conditions hereof, and those contained in the Indenture,
shall succeed to and become vested with all the rights, powers,
privileges and duties of the former Remarketing Agent. Notwithstanding
the foregoing, the Remarketing Agent may resign and be discharged of
its duties and obligations hereunder and under the Indenture by
notifying the Issuer, the Trustee, the Tender Agent, if any, the
Credit Obligor and the Company, and such resignation shall take
immediate effect without the appointment of a successor Remarketing
Agent, if an Event of Default has occurred and is continuing under the
Indenture or the Company fails to pay the fees and expenses of the
Remarketing Agent in the amounts and at the time provided in Section 6
hereof. Notwithstanding the foregoing, no termination shall affect
the rights and obligations of the parties regarding Bonds with respect
to which the Remarketing Agent is obligated to use its best efforts to
remarket the Bonds pursuant to Section 3(d) hereof or which
theretofore otherwise have been remarketed by the Remarketing Agent.
(e) The Remarketing Agent's responsibilities hereunder will
include (i) soliciting purchases of Bonds by institutional investors
that customarily purchase tax-exempt securities in large denominations
at market rates, (ii) effecting and processing such purchases, (iii)
-2-
3
causing the distribution of any written disclosure materials,
as shall have been approved and paid for by the Company, to
prospective purchasers in connection with the remarketing of the
Bonds, and (iv) performing such other related functions as may be
requested by the Issuer and the Company and agreed to by the
Remarketing Agent. The Remarketing Agent will furnish copies of the
foregoing disclosure materials to the Issuer, the Company and the
Trustee upon their written request therefor. The Remarketing Agent
may purchase Bonds but shall be under no obligation to purchase Bonds
remarketed pursuant to this Agreement. Upon a repurchase of Bonds and
prior to their remarketing, the Remarketing Agent will be entitled to
all rights of a Bondholder.
If, during and prior to such time as the Placement Memorandum,
dated April 23, 1997, relating to the Bonds (the "Placement
Memorandum") (including the Preliminary Placement Memorandum
circulated in connection with the placement of the Bonds) is used in
connection with the placement of the Bonds, any event known to the
Company relating to or affecting the Company, the Issuer, the Credit
Obligor, or the Bonds shall occur, the result of which is that the
Placement Memorandum would include a misstatement of a material fact,
or would omit to state a material fact necessary in order to make the
statements made therein, in light of the circumstances under which
they were made, not misleading, the Company will promptly notify the
Remarketing Agent in writing of the circumstances and details of such
event. The Company and the Issuer will cooperate with the Remarketing
Agent in the preparation of any additional disclosure statement or
marketing materials (a "Disclosure Statement") that the Remarketing
Agent determines are necessary or desirable in connection with the
remarketing of the Bonds or which the Remarketing Agent determines
should be provided to owners of the Bonds.
The Company and the Remarketing Agent acknowledge that certain
remarketings of the Bonds may be subject to the requirements of Rule
15c2-12 promulgated under the Securities Exchange Act of 1934, as
amended ("Rule 15c2-12"). The Company agrees, in the event Rule
15c2-12 is applicable to any remarketing of Bonds hereunder, to take
such actions as are necessary at the time to enable the Remarketing
Agent to comply with the provisions of Rule 15c2-12. The Company
shall furnish to the Issuer and the Remarketing Agent a Disclosure
Statement at such times and in such quantities as are necessary to
enable the Issuer and the Remarketing Agent to comply with Rule
15c2-12, if applicable.
If the Company fails to perform its obligations under this
Section, the Remarketing Agent may immediately cease remarketing
efforts.
(f) The Remarketing Agent agrees that, so long as this
Agreement remains in effect, it will be available to consult with the
Company and the Issuer on a timely basis with respect to the
determination of the interest rate on the Bonds, all in the manner
contemplated by the Indenture and with respect to all other matters
relating to its responsibilities under this Agreement. In addition,
the Remarketing Agent will furnish the Issuer and the Company with
information as to the prices at which such Bonds are placed, as the
Issuer and the Company
-3-
4
may from time to time reasonably request. The Remarketing
Agent shall not be liable for any action taken or omitted to be taken
pursuant to this Agreement, except for its own gross negligence or
willful misconduct or that of its agents which have been so appointed
in writing by the Remarketing Agent.
(g) The Remarketing Agent may, if it elects to do so in its
sole discretion, purchase, as principal, any Bonds rendered to it, but
it will not in any event be obligated to do so, and, if it purchases
Bonds tendered to it, it will have the same rights under the Indenture
as any other holder of such Bonds.
3. Representations, Warranties, Covenants and Agreements of the
Remarketing Agent. The Remarketing Agent, by its acceptance hereof,
represents, warrants, covenants and agrees with the Issuer as follows:
(a) The Remarketing Agent has a capitalization of at least
$15,000,000 as shown in its most recent published annual report.
(b) The Remarketing Agent is authorized by law to perform
the duties imposed upon it by the Indenture and has full power and
authority to take all actions required or permitted to be taken by the
Remarketing Agent by or under, and to perform and observe the
covenants and agreements on its part contained in this Agreement.
(c) The Remarketing Agent shall determine the interest rate
of the Bonds, all in accordance with Article III of the Indenture.
(d) The Remarketing Agent shall use its best efforts to
remarket or place the Bonds pursuant to the Indenture and this
Agreement, unless there has occurred an Event of Default under the
Indenture.
(e) The Remarketing Agent will not remarket any tendered
Bonds if the Credit Obligor notifies the Remarketing Agent that the
Letter of Credit or any Substitute Letter of Credit, if drawn upon,
has not been reinstated to an amount equal to the principal amount of
Bonds Outstanding together with at least 45 days' accrued interest
thereon.
4. Representations, Warranties, Covenants and Agreements of the
Company. The Company, by its acceptance hereof, represents, warrants,
covenants and agrees with the Remarketing Agent as follows:
(a) The Company has the requisite power and authority to
take all actions required or permitted to be taken by the Company by
or under, and to perform and observe the covenants and agreements on
its part contained in, this Agreement and any other instrument or
agreement relating thereto to which the Company is a party.
-4-
5
(b) The Company has, as of the date hereof, duly taken all
action necessary to be taken by it prior to such date, for (i) the
execution, delivery and performance of this Agreement and any other
instrument or agreement to which the Company is a party and which has
been or will be executed in connection with the transactions
contemplated by the foregoing documents and (ii) the carrying out,
giving effect to, consummation and performance of, the transactions
and obligations contemplated hereby and by the Placement Memorandum.
(c) This Agreement and any other instrument or agreement to
which the Company is a party and which has been or will be executed in
connection with the consummation of the transactions contemplated by
the foregoing documents, when executed and delivered by the parties
hereto and thereto, constitutes or will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws, judicial decisions or principles of equity
relating to or affecting the enforcement of creditors' rights
generally.
(d) The execution and delivery of this Agreement and any
other instrument or agreement to which the Company is a party and
which has been or will be executed in connection with the consummation
of the transactions contemplated by the foregoing documents, the
compliance with the terms, conditions or provisions hereof and
thereof, and the consummation of the transactions herein and therein
contemplated do not upon the date of execution and delivery hereof and
thereof, and will not, (i) violate any law or any regulation, order,
writ, injunction or decree of any court or governmental
instrumentality applicable to the Company which violation would have a
material adverse effect on the Company, except under the federal
securities or state securities or blue sky laws in connection with the
placement of the Bonds by the Placement Agent pursuant to the
Placement Agency Agreement or the remarketing of the Bonds by the
Remarketing Agent pursuant to this Agreement, or (ii) result in a
breach of any of the terms, conditions or provisions of, or constitute
default under, any mortgage, indenture, agreement or instrument to
which the Company is a party or by which it or any of its property is
bound.
(e) All authorizations, consents and approvals of, notices
to, registrations or filings with, or actions in respect to any
governmental body, agency or other instrumentality or court required
in connection with the execution, delivery and performance by the
Company of this Agreement and any other agreement or instrument to
which the Company is a party and which has been or will be executed in
connection with the consummation of the transactions contemplated by
the foregoing documents, have been obtained, given or taken and are in
full force and effect, except for such licenses, certificates,
approvals, ordinances or permits which may be necessary for the use of
the proceeds of the Bonds or described in the Placement Memorandum and
for which the Company has applied or will apply and which it expects
to receive and except as may be required under the state securities or
blue sky laws in connection with the placement of the Bonds by the
Placement Agent pursuant to the
-5-
6
Placement Agency Agreement or the remarketing of the Bonds by the
Remarketing Agent pursuant to this Agreement.
(f) Except as disclosed by the Company to the Placement
Agent and described in the Placement Memorandum or any supplement
thereto delivered to the Remarketing Agent, there is no action, suit,
investigation, proceeding, or arbitration, at law or in equity or
before or by any foreign or domestic court or other governmental
entity, pending or, to the knowledge of the Company, threatened
against or affecting the Company wherein an unfavorable decision,
ruling or finding could have a material adverse effect on the
transactions contemplated by this Agreement or by the Placement
Memorandum, or which would materially and adversely affect the
validity or enforceability of or the authority or ability of the
Company to perform its obligations under, this Agreement or any other
agreement or instrument to which the Company is a party and which is
used or contemplated for use in consummation of the transactions
contemplated by this Agreement or the Placement Memorandum.
(g) The Company is not in default under any indenture or
other agreement or instrument governing outstanding indebtedness to
which the Company is a party or by which it is bound, which default
would have a material adverse effect on the transactions contemplated
by this Agreement or by the Placement Memorandum, nor has any event
occurred which with notice or the passage of time or both would
constitute such a default under any such document.
(h) The Company will cooperate with the Remarketing Agent
in the qualification of the Bonds for placement and the determination
of the eligibility of the Bonds for investment under the laws of such
jurisdictions as the Remarketing Agent shall designate and will use
its best efforts to continue any such qualification in effect so long
as required for the distribution of the Bonds by the Remarketing
Agent, provided that the Company shall not be required to qualify to
do business in any jurisdiction where it is not so qualified or to
take any action which would subject it to general service of process
in any jurisdiction where it is not now so subject.
(i) The Company has no knowledge or reason to believe that
any information relating to the Company contained in the Placement
Memorandum, contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements
made therein, in the light of the circumstances under which they are
made, not misleading.
(j) The Company shall, consistent with the terms of the
Indenture, if the Remarketing Agent deems it advisable as a means of
facilitating its performance under this Agreement, cooperate with the
Issuer and the Remarketing Agent in connection with maintaining the
rating of the Bonds from Standard & Poor's.
-6-
7
5. Conditions of the Remarketing Agent's Obligations. The
obligations of the Remarketing Agent under this Agreement have been undertaken
in reliance on, and shall be subject to, the due performance by the Company of
its obligations and agreements to be performed hereunder and to the accuracy of
and compliance with the respective representations, warranties, covenants and
agreements of the Company contained herein, in each case on and as of the date
of delivery of this Agreement and on and as of each date on which Bonds are to
be placed pursuant to this Agreement. The obligations of the Remarketing Agent
to remarket the Bonds pursuant to this Agreement are also subject, in the
discretion of the Remarketing Agent, to the following further conditions:
(a) The Letter of Credit or any Substitute Letter of
Credit, covering the aggregate principal amount of originally issued
Bonds Outstanding and at least 45 days' accrued interest thereon
calculated at an interest rate of 12% based on a 365/366 day year,
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 and there shall be in full force and effect
such additional resolutions, agreements, certificates (including such
certificates as may be required by regulations of the Internal Revenue
Service in order to establish the tax-exempt character of interest on
the Bonds) and opinions as shall be reasonably necessary to effect the
transactions contemplated by this Agreement, which resolutions,
agreements, certificates and opinions, at the request of the
Remarketing Agent, shall be satisfactory in form and substance to the
Remarketing Agent;
(b) The representations, warranties, covenants and
agreements of the Company made herein and in the Placement Agency
Agreement and of the Issuer made in the Placement Agency Agreement
shall be true and correct in all material respects;
(c) The Company shall have complied with the second and
third paragraphs of Section 2(e) hereof required in connection with
any remarketing of the Bonds; and
(d) No Event of Default (as such term is defined in the
Indenture) shall have occurred and be continuing and no event shall
have occurred and be continuing which, with the passage of time or
giving of notice or both, would constitute such an Event of Default.
6. Payment of Fees and Expenses. In consideration for the
services to be performed by the Remarketing Agent under this Agreement, the
Company shall pay to the Remarketing Agent:
(a) a fee (the "Remarketing Fee") which is determined as
follows: the principal amount of the Bonds Outstanding as of the later
of the Closing Date or on each January 1 following the Closing Date
(each, a "Calculation Date") multiplied by 0.125% and the result
thereof is multiplied by a fraction the numerator of which is the
number of actual days elapsed since the Closing Date or the most
recent Calculation Date, whichever is later, and the current
Calculation Date and the denominator is 365 days. The Remarketing
Fee, as determined on the Closing Date or a subsequent Calculation
Date, shall be payable in advance to the Remarketing Agent on the
Closing Date and each subsequent Calculation Date thereafter; and
-7-
8
(b) with respect to all other Bonds, a remarketing fee which
will be agreed upon by the Remarketing Agent and the Company at the
time of remarketing of such Bonds. The Remarketing Agent will not be
entitled to such compensation for any period after this Agreement is
terminated except for a pro rata portion of the fee in respect of the
year in which such termination occurs. The Company shall pay to the
Remarketing Agent on demand all reasonable costs, expenses and
attorney's fees incurred by the Remarketing Agent in connection with
actions initiated by the Remarketing Agent to enforce this Agreement
in which the Remarketing Agent prevails. The Company shall make all
such payments directly to the person or entity to whom or to which
they are due.
7. Indemnification.
(a) The Company shall indemnify and hold harmless the
Remarketing Agent and the Issuer and their directors, officers,
members, employees, agents and each person, if any, who controls the
Remarketing Agent or the Issuer, respectively, within the meaning of
Section 15 of the Securities Act of 1933, as amended (the "Securities
Act") (such persons being herein sometimes collectively referred to as
the "Indemnified Persons" and individually, an "Indemnified Person"),
from any losses, claims, damages or liabilities to which any
Indemnified Person may become subject insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of,
or are based upon (i) an allegation or determination that the Bonds or
the obligations of the Company under the Lease Agreement or the
Reimbursement Agreement or the obligations of the Credit Obligor under
the Letter of Credit or any Substitute Letter of Credit should have
been registered under the Securities Act or the Indenture should have
been qualified under the Trust Indenture Act of 1939, as amended;
provided, however, that the provisions of this subsection (i) shall
not be applicable to the Remarketing Agent or any related Indemnified
Person if the Remarketing Agent is also the Placement Agent, (ii) any
untrue statement or alleged untrue statement of a material fact
relating to the Company contained in the Placement Memorandum or any
Disclosure Statement provided pursuant to Section 2(e) hereof or any
amendment or supplement thereto or the omission or alleged omission to
state therein a material fact necessary to make the statements therein
not misleading, and will reimburse each Indemnified Person for any
legal or other expenses reasonably incurred by such Indemnified Person
in investigating, defending or preparing to defend any such action or
claim. The indemnity agreement in this paragraph shall be in addition
to any liability which the Company may otherwise have to any
Indemnified Person.
(b) Promptly after receipt by an Indemnified Person under
paragraph (a) of this Section of notice of the commencement of any
action, such Indemnified Person shall, if a claim in respect thereof
is to be made against the Company under such paragraph, notify the
Company in writing of the commencement thereof. In case any such
action shall be brought against any Indemnified Person, and such
Indemnified Person shall notify the Company of the commencement
thereof, the Company shall be entitled to participate in and, to the
extent that it wishes, to assume the defense thereof, with counsel
satisfactory to such Indemnified Person,
-8-
9
and after notice from the Company to such Indemnified Person of
its election so to assume the defense thereof, the Company shall not
be liable to such Indemnified Person under such paragraph for any
legal or other expenses subsequently incurred by such Indemnified
Person in connection with the defense thereof other than reasonable
costs of any investigation; provided, however, that if the named
parties to any such action (including any impleaded parties) include
both the Remarketing Agent (or its partners, officers, employees or
agents or any person so controlling the Remarketing Agent) and the
Company, and the Remarketing Agent (or such partners, officers,
employees or agents or such person so controlling the Remarketing
Agent) shall have reasonably concluded that there may be one or more
legal defenses available to it which are different from or additional
to those available to the Company, the Remarketing Agent (or such
partners, officers, employees or agents or such person so controlling
the Remarketing Agent) shall have the right to select, separate
counsel to assume such legal defenses and to otherwise participate in
the defense of such action on behalf of the Remarketing Agent (or such
partners, officers, employees or agents or such person so controlling
the Remarketing Agent); provided further, however, that the Company
shall not, in connection with any one such action, or separate but
substantially similar or related actions arising out of the same
general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys at any point in
time for the Remarketing Agent and partners, officers, employees and
agents and all persons so controlling the Remarketing Agent.
(c) The Company shall not be liable for any settlement of
any such action effected without its consent by any Indemnified
Person, but if settled with the consent of the Company or if there be
a final judgment for the plaintiff in any such action against the
Company or any Indemnified Person, with or without the consent of the
Company, the Company shall indemnify and hold harmless such
Indemnified Person to the extent provided in this Agreement.
(d) The Remarketing Agent shall indemnify and hold harmless
the Company and the directors, officers, employees, agents and each
person, if any, who controls the Company within the meaning of Section
15 of the Securities Act (such persons being herein sometimes
collectively referred to as the "Company Indemnified Persons" and
individually, a "Company Indemnified Person"), from any losses,
claims, damages or liabilities to which any Company Indemnified Person
may become subject insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of, or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Placement Memorandum or any Disclosure Statement
provided pursuant to Section 2(e) hereof or any amendment or
supplement thereto or the omission or alleged omission to state
therein a material fact necessary to make the statements therein not
misleading, but in each case only to the extent that such untrue or
misleading statement or alleged untrue or misleading statement or
omission or alleged omission was made in the Placement Memorandum or
such Disclosure Statement or in such amendment or supplement thereto
in reliance upon and in conformity with information furnished to the
Company in writing by the Remarketing Agent. The
-9-
10
Remarketing Agent shall reimburse each Company Indemnified
Person for any legal or other expenses reasonably incurred by such
Company Indemnified Person in investigating, defending, or preparing
to defend any such action or claim. The indemnity agreement in this
paragraph shall be in addition to any liability which the Remarketing
Agent may otherwise have to any Company Indemnified Person.
(e) Promptly after receipt by a Company Indemnified Person
under paragraph (d) of this Section of notice of the commencement of
any action, such Company Indemnified Person shall, if a claim for
indemnification in respect thereof is to be made against the
Remarketing Agent under this paragraph, notify the Remarketing Agent
of the commencement thereof, and the Remarketing Agent shall promptly
assume the defense thereof, including the employment of legal counsel
reasonably satisfactory to the Company, the payment of all expenses,
and the right to negotiate and consent to settlement. If the
Remarketing Agent assumes the defense of such claim, the Remarketing
Agent shall not be liable to any Company Indemnified Person under such
paragraph for any legal or other expense subsequently incurred by such
Company Indemnified Person in connection with the defense thereof;
provided, however, that if the named parties to any such action
(including any impleaded parties) include both any Company Indemnified
Person and the Remarketing Agent, and the Company Indemnified Person
shall have reasonably concluded, based upon the advice of legal
counsel, that there may be one or more legal defenses available to it
which are different from or additional to those available to the
Remarketing Agent, and that as a result thereof such counsel has
advised such Company Indemnified Person that employment of the same
legal counsel may involve a conflict of interest, the Company
Indemnified Person shall have the right to select separate counsel to
assume such legal defense and to otherwise participate in the defense
of such action on behalf of the Company Indemnified Person; provided
further, however, that the Remarketing Agent shall not, in connection
with any one such action, or separate but substantially similar or
related actions arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one
separate firm of attorneys at any point in time for the Company and
other Company Indemnified Persons.
(f) The Remarketing Agent shall not be liable for any
settlement of any such action effected without its consent by any
Company Indemnified Person, but if settled with the consent of the
Remarketing Agent or if there is a final judgment for the plaintiff in
any such action against any Company Indemnified Person, with or
without the consent of the Remarketing Agent, the Remarketing Agent
shall indemnify and hold harmless such Company Indemnified Person to
the extent provided in this Agreement.
(g) The indemnity agreements contained in this Section 7
shall remain in full force and effect, regardless of any investigation
made by or on behalf of the Remarketing Agent and the Company, and
shall survive the termination or cancellation of this Agreement.
-10-
11
8. Nature of the Remarketing Agent's Obligations. Without
limiting the foregoing, the Remarketing Agent is expressly authorized and
directed to honor its obligations under and in compliance with the terms of
this Agreement without regard to, and without any duty on its part to inquire
into, the existence of any disputes or controversies between the Company, the
Trustee, the Credit Obligor or any other person or the respective rights,
duties or liabilities of any of them, or whether the facts or occurrences
represented in any of the documents presented under this Agreement are true and
correct. Furthermore, the Company fully understands and agrees that the
Remarketing Agent's sole obligation to the Company shall be limited to honoring
its obligations under and in compliance with the terms of this Agreement.
9. Intention of Parties. It is the express intention of the
parties hereto that neither the determination of any interest rate on the Bonds
nor any placement, tender or transfer of any Bond, as herein provided, shall
constitute or be construed to be the extinguishment of any Bond or the
indebtedness represented thereby or the reissuance of any Bonds.
10. Registration of Letter of Credit. If the blue sky or
securities laws of any state or other jurisdiction requires the registration or
qualification of the Letter of Credit or any Substitute Letter of Credit, the
Remarketing Agent shall not offer or place any Bonds in or into such state or
other jurisdiction.
11. Miscellaneous. (a) Except as otherwise specifically provided
in this Agreement, all notices, demands and formal actions under this Agreement
shall be in writing and mailed or delivered by courier or facsimile
transmission to:
The Remarketing Agent:
LaSalle National Bank
181 West Madison Street, Suite 3203
Chicago, Illinois 60602-4510
Attention: Capital Markets Group
Telephone: (312) 904-7047
Facsimile number: (312) 904-8167
-11-
12
The Company:
McClain Industries, Inc.
6200 Elmridge Road
Sterling Heights, MI 48310
P.O. Box 180913
Utica, MI 48318
Attention: Mr. Carl Jaworski
Telephone: (810) 264-3611
Facsimile number: (810) 264-7191
The Issuer:
The Industrial Development Board of the City of Demopolis
City Hall
Demopolis, Alabama 36732
Attention:
Telephone:
Telecopier:
Each of the above-named addressees may by notice given under this
Agreement, designate other addresses to which subsequent notices, requests,
reports or other communications shall be directed.
(b) This Agreement will inure to the benefit of and be
binding upon the Remarketing Agent and the Company 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.
(c) All of the representations, warranties and covenants of
the Company, the Issuer and the Remarketing Agent in this Agreement
shall remain operative and in full force and effect, regardless of (i)
any investigation made by or on behalf of the Remarketing Agent, the
Issuer or the Company or (ii) delivery of and any payment for any
Bonds.
(d) Section headings have been inserted in this Agreement
as a matter of convenience for reference only, and such section
headings are not a part of this Agreement and will not be used in the
interpretation of any provisions of this Agreement.
(e) This Agreement shall be governed exclusively by and
construed in accordance with the internal laws of the State of
Illinois applicable to contracts to be wholly performed therein.
(f) This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered
shall be an original, and such counterparts shall together constitute
but one and the same instrument.
-12-
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first written above.
McCLAIN OF ALABAMA, INC.
By: ???
------------------------------------------
Title: Secretary
---------------------------------------
LASALLE NATIONAL BANK,
as Remarketing Agent
By: Thomas Boland
------------------------------------------
Title: Vice President
---------------------------------------
THE INDUSTRIAL DEVELOPMENT
BOARD OF THE CITY OF DEMOPOLIS
By: John E. Northcutt (?)
------------------------------------------
Title: Chairman of the Board of Directors
-13-