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EXHIBIT 10.59
REMARKETING AGREEMENT
This REMARKETING AGREEMENT, dated as of May 1, 2001 (the "Agreement"),
among Wells Fargo Brokerage Services, LLC (the "Remarketing Agent"), Frequency &
Time Systems, Inc., a Delaware corporation (the "Borrower"), and Wells Fargo
Bank Minnesota, National Association, as trustee (the "Trustee");
WITNESSETH:
WHEREAS, the Massachusetts Development Finance Agency (the "Issuer") has
issued its Industrial Development Revenue Bonds, Frequency & Time Systems Issue,
Series 2001 (the "Bonds"), pursuant to a Loan and Trust Agreement dated as of
May 1, 2001 (the "Loan Agreement"), among the Issuer, the Borrower and the
Trustee, as amended from time to time;
WHEREAS, the Bonds and Loan Agreement provide, among other things, that
the owners of the Bonds (the "Owners") may elect (or may be required) in certain
instances to tender their Bonds for purchase upon the terms and conditions
contained in the Bonds and the Loan Agreement;
WHEREAS, pursuant to the provisions of the Loan Agreement, Wells Fargo
Brokerage Services, LLC, has been appointed as remarketing agent for the Bonds
to perform certain duties, including the use of its best efforts to remarket any
Bonds tendered for purchase by the Owners; and
WHEREAS, Wells Fargo Brokerage Services, LLC, has agreed to accept the
duties and responsibilities of the remarketing agent for the Bonds under the
Loan Agreement and this Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants made
herein and other valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions.
(a) Unless otherwise defined herein, all capitalized terms shall have
the meanings ascribed to them in the Loan Agreement.
(b) "Financing Documents" as such term is used herein includes the Bond
Purchase Agreement, the Reimbursement Agreement, the Credit Facility, the Loan
Agreement and any other document that has been executed or will be executed in
connection with the transactions contemplated by the foregoing documents.
Section 2. Appointment of Remarketing Agent. Subject to the terms and
conditions contained herein, Wells Fargo Brokerage Services, LLC, hereby accepts
its appointment as Remarketing Agent for the Bonds. This Remarketing Agreement
is the agreement referenced in
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Section 314 of the Loan Agreement. The terms and conditions of the Loan
Agreement relating to the duties and obligations of the Remarketing Agent are
incorporated herein by reference.
Section 3. Responsibilities of Remarketing Agent.
(a) Subject to the terms and conditions set forth in this Remarketing
Agreement, Wells Fargo Brokerage Services, LLC, agrees to perform the duties of
the Remarketing Agent set forth in the Loan Agreement.
(b) Remarketing of Tendered Bonds.
(i) The Remarketing Agent shall use its best efforts to remarket
Bonds to be purchased as described in the Loan Agreement.
(ii) The Remarketing Agent.
(A) will, by giving written notice (an "Automatic Suspension
Notice") to the Issuer, the Borrower, the Trustee and the Bank, suspend its
remarketing efforts immediately upon receipt of notice from the Trustee of the
occurrence of an Event of Default under the Loan Agreement, which suspension may
continue only so long as the event continues to exist if, in the Remarketing
Agent's reasonable judgment, the continuance of the event has a material adverse
effect on its ability to remarket the Bonds; and
(B) may suspend its remarketing efforts immediately upon the
occurrence of any of the following events, but only after notice (a
"Discretionary Suspension Notice") to the Issuer, the Borrower, the Trustee and
the Bank, which suspension will continue only so long as the event continues to
exist if, in the Remarketing Agent's reasonable judgment, the continuance of the
event has a material adverse effect on its ability to remarket the Bonds:
(1) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange;
(2) a general moratorium on commercial banking activities in
New York is declared by either federal or New York State
authorities;
(3) the engagement by the United States in hostilities
resulting in a declaration of war or national emergency, or the
occurrence of any other outbreak of hostilities or national or
international calamity or crisis, financial or otherwise;
(4) the enactment of a federal law, or the rendering of a
decision by a court of the United States, or the issuance or
making of 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, in any such case to the effect that, the
offering or sale of obligations of the general character of
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the Bonds, or the remarketing of the Bonds, as contemplated
hereby, is or would be in violation of any provision of the
Securities Act of 1933, as amended (the "Securities Act") and as
then in effect; or the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and as then in effect, or the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") and
as then in effect, 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;
(5) any event shall occur or information shall become known,
which, in the Remarketing Agent's reasonable judgment, makes
untrue, incorrect or misleading in any material respect any
statement or information contained in the then most current
Disclosure Document (defined in Section 6 below) provided to the
Remarketing Agent in connection with the performance of its
duties hereunder, whether provided pursuant to Section 6 hereof
or otherwise, or causes such document 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;
(6) 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;
(7) any of the material representations and warranties of the
Borrower made hereunder shall not have been true and correct on
the date made; or
(8) the Borrower shall fail to observe any of the material
covenants or agreements made herein.
Section 4. Remarketing Agent Not to Act as Underwriter. It is understood
and agreed that the Remarketing Agent, in entering into this Remarketing
Agreement, is obligated to remarket the Bonds upon consideration of prevailing
financial market conditions pursuant to Section 312 of the Loan Agreement. The
Remarketing Agent shall not, in fulfilling its obligations hereunder, act as an
underwriter for Bonds and is in no way obligated, directly or indirectly, to
advance its own funds to purchase Bonds delivered to it pursuant to the Loan
Agreement.
Section 5. Resignation and Removal of Remarketing Agent. The Remarketing
Agent may resign or be removed pursuant to the provisions of the Loan Agreement.
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Section 6. Disclosure Materials.
(a) General. If the Remarketing Agent determines that it is necessary or
desirable to use an official statement, private placement memorandum or other
disclosure document with respect to the Bonds (each, including all amendments
and supplements thereto, a "Disclosure Document") in connection with its
remarketing of the Bonds, the Remarketing Agent will notify the Issuer and the
Borrower, and the Borrower, at its expense, will provide the Remarketing Agent
with the Disclosure Document satisfactory to the Remarketing Agent and the
Issuer and their respective counsel. The Borrower will supply the Remarketing
Agent with such number of copies of the Disclosure Document as the Remarketing
Agent requests from time to time, and the Borrower will amend the Disclosure
Document (and all documents incorporated by reference therein) so that at all
times the Disclosure Document will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. In connection with the use of any Disclosure Document by the
Remarketing Agent in its remarketing of the Bonds, the Borrower, at its expense,
will furnish to the Remarketing Agent such certificates, accountants' letters
and opinions of counsel as the Remarketing Agent reasonably requests. In
addition, the Borrower, at its expense, will take all steps reasonably requested
by the Remarketing Agent that the Remarketing Agent or its counsel may consider
necessary or desirable to (a) register the sale of the Bonds by the Remarketing
Agent under any federal or state securities law or qualify the Loan Agreement
under the Trust Indenture Act, or (b) enable the Remarketing Agent to establish
a "due diligence" defense to any action commenced against the Remarketing Agent
in respect of any Disclosure Document.
(b) Compliance with Rule 15c2-12. In the event the Remarketing Agent is
asked to remarket the Bonds in any situation that requires compliance with Rule
15c2-12 of the Exchange Act (the "Rule"):
(i) the Borrower will provide the Remarketing Agent with a
Disclosure Document that the Borrower deems final as of its date (exclusive of
pricing and other sales information permitted to be omitted by the Rule), prior
to the date the Remarketing Agent bids for, offers or sells any Bonds;
(ii) the Borrower will provide the Remarketing Agent with such
number of copies of any preliminary placement memorandum or other Disclosure
Document prepared in connection therewith, as the Remarketing Agent may need to
supply at least one copy thereof to each potential customer who requests it;
(iii) the Borrower shall provide the Remarketing Agent within seven
(7) business days after the interest rate is determined or by the time "money
confirmations" are to be sent to customers, whichever is earlier, with a number
of copies of the final Disclosure Document adequate to provide at least one copy
of such final Disclosure Document to any customer or any potential customer for
a period commencing on the date such final Disclosure Document is available and
extending for the underwriting period as defined in the Rule (the "Underwriting
Period") and, thereafter, for as long as may be required by the Rule. During the
Underwriting Period, the Borrower agrees to update, by written supplement or
amendment or
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otherwise, the final Disclosure Document such that at all times during such
period the final Disclosure Document will not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and
(iv) the Borrower will undertake, in a written agreement or contract
for the benefit of Owners, to provide the information required by paragraph
(b)(5) of the Rule to the persons or entities and at the times required by
paragraph (b)(5) of the Rule.
(c) Subsequent Events. In the event that there are any additional
regulatory requirements, amendments or modifications to the securities laws
which are applicable to the Remarketing Agent's performance of its obligations
under this Remarketing Agreement, the Borrower shall be required to take all
steps reasonably requested by the Remarketing Agent that the Remarketing Agent
or its counsel may consider necessary or desirable in order to comply with such
additional requirements, as a condition precedent to the Remarketing Agent's
performing its obligations hereunder.
Section 7. Indemnification and Contribution.
(a) The Borrower agrees to indemnify and hold harmless the Remarketing
Agent, and each person, if any, who controls the Remarketing Agent within the
meaning of Section 15 of the Securities Act, to the extent permitted under
applicable law, against any and all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation) caused by any untrue
statement or alleged untrue statement of a material fact with respect to the
Borrower, Datum, Inc., or the Project contained in a Disclosure Document
provided pursuant to Section 6 hereof or in any amendment or supplement thereto,
or caused by any omission or alleged omission to state therein, in light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities or expenses are caused by any such untrue
statement or omission or allegation thereof based upon information furnished in
writing to the Borrower by the Remarketing Agent expressly for the use in
connection therewith.
(b) If any action or claim (including any governmental investigation)
shall be brought or asserted against the Remarketing Agent or any person so
controlling the Remarketing Agent based upon a Disclosure Document, and in
respect of which indemnity may be sought from the Borrower, the Remarketing
Agent or such controlling person shall promptly notify the Borrower in writing,
and the Borrower shall assume the defense thereof, including the employment of
counsel and the payment of all expenses. The Remarketing Agent or any such
controlling person shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of the Remarketing Agent or such controlling
person unless (i) the employment thereof has been specifically authorized by the
Borrower, (ii) the Borrower has failed to assume the defense and employ counsel,
or (iii) the named parties to any such action (including any impleaded parties)
include both the Remarketing Agent or such controlling person and the Borrower,
and representation of the Remarketing Agent or such controlling person and the
Borrower by counsel representing the Borrower would be inappropriate due to
actual or potential differing interests between the Borrower and the other named
party (in which case the Borrower shall not have the right to
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assume the defense of such action on behalf of the Remarketing Agent or such
controlling person, it being understood, however, that the Borrower 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 reasonable fees and expenses of more than one separate firm of
attorneys at any point in time for the Remarketing Agent and such controlling
persons, which firm shall be designated in writing by the Remarketing Agent).
The Borrower shall not be liable for any settlement of any such action effected
without its consent, but if settled with the consent of the Borrower or if there
is a final judgment for the plaintiff in any such action, the Borrower will
indemnify and hold harmless any indemnified person from and against any loss or
liability by reason of such settlement or judgment. The Borrower shall not,
without the prior written consent of the Remarketing Agent, effect any
settlement of any pending or threatened proceeding in respect of which the
Remarketing Agent is or could have been a party and indemnity could have been
sought hereunder by the Remarketing Agent, unless such settlement includes an
unconditional release of the Remarketing Agent from all liability or claims that
are the subject matter of such proceeding.
(c) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in Section 7(a) hereof
is due in accordance with its terms but, for any reason, is held by a court to
be unavailable on grounds of policy or otherwise, the Borrower and the
Remarketing Agent will contribute to the total losses, claims, damages and
liabilities (including legal or other expenses of investigation or defense) to
which the Borrower and the 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 pursuant to Section
8 hereof bears to the principal amount of the Bonds under this Remarketing
Agreement and the Borrower is responsible for the balance. In no case, however,
will the Remarketing Agent be responsible for any amount in excess of the fee
applicable to the Bonds remarketed by the Remarketing Agent under this
Remarketing Agreement, and no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph, each person who controls the
Remarketing Agent within the meaning of Section 15 of the Securities Act shall
have the same rights to contribution as the Remarketing Agent, and those persons
who so control the Borrower and each partner of the Borrower will have the same
rights to contribution as the Borrower, subject to the foregoing sentence. Any
party entitled to contribution will, 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 this paragraph, notify each party from whom contribution may be sought,
but the failure to give such notice will not relieve the party from whom
contribution may be sought from any obligation it may have to the party entitled
to contribution.
Section 8. Fees and Expenses. For the Remarketing Agent's services under
this Remarketing Agreement and the Loan Agreement, the Borrower will pay the
Remarketing Agent annually in advance a fee of 1/8 of one percent per annum
(.125%) of the aggregate principal amount of Bonds outstanding on the payment
date commencing on the Closing Date and on each May 1 thereafter (with an
appropriate pro rata adjustment for the period ending April 30, 2002). The
Remarketing Agent will give immediate notice to the Trustee of the non-payment
of the
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Remarketing Agent's fee on any date on which the fee is due and payable.
If applicable, when Bonds are remarketed in connection with the conversion of
the interest rate to another interest rate mode permitted under the Loan
Agreement, or in the event that Bonds are remarketed in connection with a
purchase of the Bonds by the Trustee in lieu of redemption, the Borrower and the
Remarketing Agent will agree on a fee.
The Borrower will pay all expenses of delivering remarketed Bonds and
reimburse the Remarketing Agent for all direct, out-of-pocket expenses incurred
by it as Remarketing Agent, including reasonable counsel fees and disbursements.
Section 9. Representations, Warranties, Covenants and Agreements of the
Borrower. The Borrower, by its acceptance hereof, represents, warrants,
covenants and agrees with the Remarketing Agent that it:
(a) is a Delaware corporation duly organized and validly existing under
the laws of the State of Delaware, and qualified to do business in the State of
Massachusetts, and has full legal right, power and authority to own its
properties and to conduct its business as described in the Disclosure Document
and to enter into and to carry out and consummate the transactions contemplated
by the Financing Documents and the Disclosure Document, and is duly qualified to
transact business and are in good standing wherever failure to obtain such
qualification and/or standing would have a material adverse effect on the
Borrower;
(b) has full power and authority to take all actions required or
permitted to be taken by the Borrower by or under, and to perform and observe
the covenants and agreements on its part contained in, this Remarketing
Agreement and any other instrument or agreement relating thereto to which the
Borrower is a party;
(c) has, on or before the date hereof, duly taken all action necessary
to be taken by it prior to such date to authorize:
(i) the execution, delivery and performance of this Remarketing
Agreement, the Financing Documents to which the Borrower is a party, and any
other instrument or agreement that the Borrower is a party to and that have been
executed 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 by the foregoing
agreements; and
(d) will promptly notify the Remarketing Agent by electronic means of
any material adverse changes that may affect the remarketing of the Bonds, the
disclosure in the then current Disclosure Document prepared pursuant to Section
6 hereof or any fact or circumstance that may constitute, or with the passage of
time will constitute, an event of default under the Loan Agreement, any
Financing Document, or any other reimbursement agreement or collateral agreement
of a Bank.
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Section 10. Term of Agreement. This Remarketing Agreement shall become
effective on the Closing Date and shall continue in full force and effect until
the payment in full of the Bonds, the earlier conversion of all Bonds to another
interest rate mode, or the Remarketing Agent has been replaced or has resigned.
Section 11. Governing Law. This Remarketing Agreement shall be governed
by and construed in accordance with the laws of The Commonwealth of
Massachusetts.
Section 12. Dealing in Bonds by the Remarketing Agent. The Remarketing
Agent, in its individual capacity, may in good faith buy, sell, own, hold and
deal in any of the Bonds, including, without limitation, any Bonds offered and
sold by the Remarketing Agent pursuant to this Remarketing Agreement, and may
join in any action that any Owner may be entitled to take with like effect as if
it did not act in any capacity, either as principal or agent, may also engage in
or be interested in any financial or other transaction with the Issuer and may
act as depository, trustee, or agent for any committee or body of Owners secured
hereby or other obligations of the Issuer as freely as if it did not act in any
capacity hereunder.
Section 13. Intention of Parties. It is the express intention of the
parties hereto that any purchase, sale or transfer of any Bonds, as herein
provided, shall not constitute or be construed to be the extinguishment of any
Bonds or the indebtedness represented thereby or the reissuance of any Bonds.
Section 14. Conflict. Notwithstanding anything to the contrary that may
be contained in this Remarketing Agreement or in the Loan Agreement, in the
event of a conflict between the terms of this Remarketing Agreement and the
terms of the Loan Agreement, the terms of the Loan Agreement in all such
instances shall be controlling.
Section 15. Notices. Except as otherwise specifically provided in this
Remarketing Agreement, all notices, demands and formal actions under this
Remarketing Agreement shall be in writing and either (i) hand-delivered, (ii)
sent by electronic means, or (iii) mailed by registered or certified mail,
return receipt requested, postage prepaid, to:
The Remarketing Agent: Wells Fargo Brokerage Services, LLC
MAC: 9303-095
608 Second Avenue South, 9th Floor
Minneapolis, MN 55479-0146
Attention: Laurie Mount
The Company: Frequency & Time Systems, Inc.
34 Tozer Road
Beverly, MA 01915
Attention: President
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The Trustee: Wells Fargo Bank Minnesota, National
Association
11000 Broken Land Parkway
Columbia, MD 21044
Attention: Corporate Trust, Trustee
Administration
The Remarketing Agent, the Borrower and the Trustee may by written notice (an
"Address Change Notice") given under this Remarketing Agreement, designate other
addresses to which subsequent notices, requests, reports or other communications
shall be directed. Notices to other interested parties as are required under the
Loan Agreement shall be sent to the respective addresses set forth in the Loan
Agreement and in the manner described in the Loan Agreement.
Section 16. Miscellaneous.
(a) This Remarketing Agreement shall inure to the benefit of and be
binding only 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. No Owner or other third party
shall have any rights or privileges hereunder.
(b) All of the representations and warranties of the Borrower and the
Remarketing Agent in this Remarketing Agreement shall remain operative and in
full force and effect, regardless of (i) any investigation made by or on behalf
of the Remarketing Agent or the Borrower (ii) the offering and sale of and any
payment for any Bonds hereunder or (iii) except for Section 9(d), termination or
cancellation of this Remarketing Agreement.
(c) This Remarketing Agreement and each provision hereof may be amended,
changed, waived, discharged or terminated only by an instrument in writing
signed by the parties hereto and only with the prior written consent of the
Credit Facility Issuer.
(d) Nothing herein shall be construed to make any party an employee of
the other or to establish any fiduciary relationship between the parties except
as expressly provided herein.
(e) If any provision of this Remarketing Agreement shall be held or
deemed to be or shall, in fact, be invalid, inoperative or unenforceable for any
reason, such circumstances shall not have the effect of rendering any other
provision or 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.
17. Severability. This Remarketing Agreement has been entered into by
the Borrower, the Remarketing Agent and the Trustee for the benefit of the
Owners, and in the event any one or more of the provisions of this Remarketing
Agreement shall, for any reason, be held to be illegal or invalid, such
illegality or invalidity shall not affect any other provisions of this
Remarketing Agreement, and this Remarketing Agreement shall be construed and
enforced as if
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such illegal and invalid provisions had not been contained herein so as to
continue to provide to the Owners the benefits hereof.
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IN WITNESS WHEREOF, the Borrower, the Remarketing Agent and the Trustee
have caused this Remarketing Agreement to be executed in their respective
corporate names and attested by their duly authorized officers, all as of the
date first above written.
WELLS FARGO BROKERAGE SERVICES, LLC, as
Remarketing Agent
By ____________________________________
Senior Vice President
FREQUENCY & TIME SYSTEMS, INC., a
Delaware corporation
By ____________________________________
President
WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
By ____________________________________
Its ____________________________
Consented to by:
MASSACHUSETTS DEVELOPMENT
FINANCE AGENCY
By _______________________________
Its ____________________
WELLS FARGO BANK, N.A,
By _______________________________
Its ___________________
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