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EXHIBIT 10.72
PLACEMENT AGENCY AGREEMENT
April 23,1997
$5,225,000
THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF DEMOPOLIS
INDUSTRIAL DEVELOPMENT REVENUE BONDS
SERIES 1997
(▇▇▇▇▇▇▇ OF ALABAMA, INC. PROJECT)
The Industrial Development Board of the City of Demopolis
Demopolis, Alabama
Ladies and Gentlemen:
The undersigned placement agent (the "Placement Agent") offers to
enter into this Placement Agency Agreement (the "Agreement") with you, for the
placement by us and the execution and delivery by The Industrial Development
Board of the City of Demopolis (the "Issuer") of the Bonds specified below.
This offer is made subject to acceptance by the Issuer and approval by ▇▇▇▇▇▇▇
of Alabama, Inc. (the "Company") prior to 12:00 p.m., Central Daylight Savings
Time, on the date hereof, and upon such acceptance this Agreement shall be in
full force and effect in accordance with its terms and shall be binding upon
the Issuer, the Placement Agent and the Company. All terms not defined herein
shall have the meanings set forth in the Placement Memorandum (defined below),
or if not set forth therein, as set forth in the Indenture (defined below).
1. Upon the terms and conditions herein, the Placement Agent will
use its best efforts to arrange for the placement of, and the Issuer will
deliver to the Placement Agent, all (but not less than all) of the $5,225,000
aggregate principal amount of the Issuer's Industrial Development Revenue
Bonds, Series 1997 (▇▇▇▇▇▇▇ of Alabama, Inc., Project) (the "Bonds"), as more
fully described in the Placement Memorandum, at a price of 100% of par, for a
placement fee, payable by the Company, in an amount equal to $30,000 as
compensation for the placement of the Bonds.
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In addition, the Company is responsible for paying all other costs associated
with the issuance and placement of the Bonds, including the fees and expenses
of counsel to the Placement Agent and the Credit Obligor (as defined below), to
the extent that they are not paid from Bond proceeds.
2. The Bonds shall be as described in, and shall be secured under
and pursuant to, the Trust Indenture, dated as of April 1, 1997 (the
"Indenture"), between the Issuer and LaSalle National Bank, as trustee (the
"Trustee"), substantially in the form previously submitted to the Placement
Agent, with only such changes therein as shall be mutually agreed upon by the
Trustee, the Company, the Issuer and the Placement Agent. The Bonds are
secured by a manufacturing facility (the "Project") to be located on certain
real property in the City of Demopolis, Alabama, and leased to the Company
pursuant to the Lease Agreement between the Issuer and the Company, dated as of
April 1, 1997 (the "Lease Agreement"). The Bonds are further secured by a
letter of credit (the "Letter of Credit"), dated the date of issuance of the
Bonds, issued by Standard Federal Bank (the "Credit Obligor"), pursuant to the
Reimbursement Agreement (the "Reimbursement Agreement"), dated as of April 23,
1997 among the Company and the Credit Obligor, which Letter of Credit is
confirmed by LaSalle National Bank, as confirming bank (the "Confirming Bank").
3. The Issuer and the Company shall deliver or cause to be
delivered to the Placement Agent promptly after their acceptance hereof, two
copies of the Placement Memorandum, dated April 23, 1997 relating to the Bonds.
The Placement Memorandum, in its preliminary and final form, including the
cover page, the appendices thereto and all information incorporated therein,
with only such amendments, supplements or changes therein as shall have been
accepted by us, is hereinafter referred to as the "Placement Memorandum." The
Company has authorized the use of copies of the Placement Memorandum, the
Indenture and the Lease Agreement and the Remarketing Agreement among the
Issuer, the Company and LaSalle National Bank, as described in the Placement
Memorandum, in connection with the placement of the Bonds. The Placement Agent
agrees that it will not confirm the placement of any Bonds unless the
confirmation of such placement is accompanied or preceded by the delivery of a
copy of the Placement Memorandum.
4. The Issuer, subject to the limitations provided herein,
represents and warrants to and agrees with the Placement Agent as follows with
respect to the Bonds:
(a) The Issuer is a political subdivision and a body
political and corporate and public instrumentality of the State,
created and existing under the Act.
(b) The Issuer is authorized under the laws of the State
to (i) issue the Bonds for the purposes for which they are to be
issued as set forth in the Placement Memorandum; (ii) use the proceeds
of the Bonds to acquire, construct and equip the Project; (iii) enter
into the Indenture, the Lease Agreement, this Agreement and the
Remarketing Agreement; and (iv) pledge and assign to the Trustee the
payments to be made by the Company under the Lease Agreement and the
Issuer's rights under the Lease Agreement that are pledged or assigned
as security for the payment of the principal of, premium, if any, and
interest on the Bonds.
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(c) The Issuer has full power and authority to consummate
the transactions contemplated on its part by the Bonds, the Placement
Memorandum, the Indenture, the Lease Agreement, this Agreement and the
Remarketing Agreement.
(d) The information relating to the Issuer contained
under the caption "THE BOARD" in the Placement Memorandum does not, as
of the date hereof, and will not, as of the Closing Date (as
hereinafter defined), contain an untrue statement of a material fact
or omit to state a material fact necessary to make the statements made
therein, in the light of the circumstances under which they were made,
not misleading.
(e) The Issuer has duly authorized and approved the
execution and delivery of this Agreement.
(f) Prior to the Closing (as hereinafter defined), the
Issuer shall have duly authorized all necessary action to be taken by
it for (i) the issuance and sale of the Bonds and the use of the
proceeds of the Bonds to finance the costs of the Project on the terms
and for the purposes set forth herein and in the Placement Memorandum
and (ii) the approval, execution, delivery and/or receipt, as the case
may be, by the Issuer of the Indenture, the Lease Agreement, this
Agreement, the Remarketing Agreement, the Bonds, the Placement
Memorandum and any and all such other agreements and documents as may
be required to be approved, executed, delivered and/or received by the
Issuer in order to carry out, give effect to, and consummate the
transactions contemplated hereby and by the Placement Memorandum.
(g) The Issuer shall, on or before the Closing Date,
execute and deliver the Indenture, the Lease Agreement, this
Agreement, the Remarketing Agreement and the Bonds and shall approve
and authorize the use of the Placement Memorandum.
(h) The Bonds, when issued, delivered and paid for as
provided herein and in the Indenture will have been duly authorized
and issued and will constitute valid and binding limited obligations
of the Issuer enforceable in accordance with their terms and entitled
to the benefits and security of the Indenture and the Lease Agreement,
subject in each instance to any applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws and laws affecting the
enforcement of creditors' rights generally or relating to a public
body such as the Issuer as from time to time in effect, and further
subject to the availability of equitable remedies. The Bonds do not
pledge the credit of the Issuer, the State or any political
subdivision or agency thereof nor shall there be a charge against the
general revenues of such entities or of the Issuer or a lien against
any of their property except as specifically provided in the
Indenture. The Bonds shall be limited obligations of the Issuer and
no taxes are required to be levied for the payment of the principal
of, premium, if any, and interest on the Bonds; such principal of,
premium, if any, and interest on the Bonds being payable (except to
the extent otherwise provided in the Indenture) solely out of moneys
to be received by the Issuer as payments under the Lease Agreement
that are pledged under
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the Indenture and any other amounts derived from the Lease Agreement,
from specified amounts on deposit with the Trustee under the Indenture
and from amounts available from draws on the Letter of Credit and the
income from the temporary investment of any of the foregoing.
(i) This Agreement is and, when executed and delivered,
each of the Indenture, the Lease Agreement, this Agreement, the
Remarketing Agreement will be, assuming the due and valid
authorization, execution and delivery of such documents by the other
parties thereto, the legal, valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with their
respective terms, subject to any applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting the
enforcement of creditors' rights generally and subject to the
availability of equitable remedies, and to the qualification that
enforcement of the indemnification provisions of this Agreement may be
limited by federal or state securities laws.
(j) Except as may be set forth in the Placement
Memorandum, there is no action, suit, proceeding, inquiry or
investigation at law or in equity or before or by any court, public
board or body pending in which summons has been served or, to the best
knowledge of the Issuer, threatened against or affecting the Issuer
wherein an unfavorable decision, ruling or finding would adversely
affect (i) the corporate existence of the Issuer or the right of the
members of the Issuer to their offices or the right of the officers of
the Issuer to their respective offices, (ii) the validity of or the
Issuer's power to engage in the transactions contemplated hereby or by
the Placement Memorandum, (iii) the validity of the proceedings taken
by the Issuer for the approval, adoption, authorization, execution,
delivery, receipt and performance, as the case may be, of the Bonds,
the Placement Memorandum, the Indenture, the Lease Agreement, this
Agreement, the Remarketing Agreement, or any agreement or any
instrument to which the Issuer is a party and which is used or
contemplated for use in the consummation of the transactions
contemplated hereby or by the Placement Memorandum, (iv) the validity
or enforceability of the Bonds, the Placement Memorandum, the
Indenture, the Lease Agreement, this Agreement, the Remarketing
Agreement, or any agreement or instrument to which the Issuer is a
party and which is used or contemplated for use in the consummation of
the transactions contemplated herein or in the Placement Memorandum or
(v) the federal tax-exempt status of the interest on the Bonds or the
amounts to be received by the Issuer pursuant to the Lease Agreement.
(k) The execution and delivery by the Issuer of the
Bonds, the Indenture, the Lease Agreement, this Agreement, the
Remarketing Agreement and the other documents contemplated hereby or
by the Placement Memorandum, and compliance with their respective
provisions, the approval and delivery by the Issuer of the Placement
Memorandum, and the assignment of the Lease Agreement, including the
specified rights of the Issuer under the Lease Agreement, to the
Trustee, do not and will not conflict with, or constitute on the part
of the Issuer a breach of, or a default under, any existing law, court
or
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administrative regulation, decree, order, agreement, indenture,
mortgage or lease to which the Issuer is a party or by which the
Issuer or any of its property is or may be bound.
(l) A public hearing was held with respect to the Bonds
on April 7, 1997 and the approval of the "applicable representative"
has or will be obtained prior to the Closing, all as described in
Section 147(f) of the Code.
(m) The resolution of the Issuer, adopted April 17, 1997,
approving and authorizing the execution and delivery of the Indenture,
the Lease Agreement, this Agreement, the Remarketing Agreement and the
Bonds and the use and distribution of the Placement Memorandum, was
duly adopted at a meeting of the members of the Issuer that was called
and held pursuant to law and with all public notice required by law
and at which a quorum was present and acting throughout.
(n) The Issuer will furnish such information, execute
such instruments and take such other action in cooperation with the
Placement Agent and Placement Agent's counsel as they may reasonably
request (i) in any endeavor to qualify the Bonds for offering and sale
under the securities or "blue sky" laws or other securities laws or
regulations of such jurisdictions of the United States as the
Placement Agent may request, (ii) for the application for exemption
from such qualification, (iii) for the Placement Agent's determination
of their eligibility for investment under the laws of such
jurisdictions as the Placement Agent designates and (iv) to provide
for the continuance of such qualifications or exemptions in effect for
so long as required for the distribution of the Bonds; provided,
however, that the Issuer shall not be required by the foregoing to
consent to jurisdiction in any state other than the State and shall
not be deemed to have made any representation with regard to
securities or "blue sky" laws or other securities laws of the United
States. The Issuer shall not be obligated to pay any expenses or
costs (including legal fees) incurred in connection with such
qualification.
(o) Any certificate signed by an authorized officer of
the Issuer and delivered to the Placement Agent shall be deemed a
representation and warranty by the Issuer to the Placement Agent as to
the statements made therein.
(p) Other than as disclosed in the Placement Memorandum
and as required under Section 147(f) of the Code, no further
authorization, approval, consent or other order of any governmental
authority or agency, or of any other entity or person(s) is required
for the valid authorization, execution and delivery by the Issuer of
the Bonds and the other documents contemplated thereby or the
authorization and delivery of the Placement Memorandum.
(q) Neither the corporate existence or territorial
jurisdiction of the Issuer nor the title of the officers or members of
the governing body of the Issuer to their respective offices or
membership are being contested and no authority or proceeding for the
issuance of the Bonds has been repealed, revoked or rescinded.
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Under no circumstances will any obligation, covenant, representation
or warranty of the Issuer created by or arising out of this Agreement or out of
the Bonds, or the resolution authorizing the Bonds, be or become an
indebtedness of the Issuer, the State or any political subdivision of the State
or be a charge against the general credit or taxing power of the Issuer or the
State or any political subdivision of the State or give rise to a pecuniary
liability of the Issuer, or on the part of any member, officer, employee or
agent of the Issuer, the State or any political subdivision of the State, but
shall be payable solely out of the revenues and other funds pledged under the
Indenture.
5. The Company represents and warrants to and agrees with the
Issuer and the Placement Agent as follows with respect to the Bonds:
(a) The Company has full power and authority to own its
properties and to conduct its business as now being conducted.
(b) The information relating to the Company contained in
the Placement Memorandum on the cover page and under the captions "THE
COMPANY" and "THE PROJECT" are, as of date hereof, and will be, as of
the Closing Date, true and correct in all material respects for the
purposes for which their use is or was authorized; and such sections
do not, and as of the Closing Date will not, include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements made in such sections in light of the
circumstances under which they are or were made, not misleading.
Neither this Agreement nor any other document, certificate or written
statement furnished to the Placement Agent or the Issuer pursuant to
this Agreement or the Lease Agreement by or relating to the Company
contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements contained herein or
therein, under the circumstances under which they are or were made,
not misleading.
(c) Subsequent to the respective dates as of which
information was given to the Placement Agent and except as set forth
in or contemplated by the Placement Memorandum, no event has occurred
which has affected or may affect materially and adversely the
business, properties, operations or financial condition of the
Company.
(d) Neither the execution and delivery of the Lease
Agreement, the Reimbursement Agreement, the Remarketing Agreement, and
this Agreement nor the approval and distribution of the Placement
Memorandum and compliance by the Company with the provisions on the
Company's part contained therein nor the consummation of any other of
the transactions contemplated hereby or thereby, nor the fulfillment
of the terms hereof or thereof, conflicts with or constitutes a breach
of or default under nor contravenes any law, administrative
regulation, judgment, decree, loan agreement, indenture, bond, note,
resolution, agreement or other instrument to which the Company is a
party or to which the Company is otherwise subject, nor does any such
execution, delivery, approval, adoption or compliance result in the
creation or imposition of any lien, charge or other security interest
or encumbrance of any nature whatsoever upon any of the properties or
assets of the
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Company under the terms of any such law, administrative regulation,
judgment, decree, loan agreement, indenture, bond, note, deed of trust,
resolution, agreement or other instrument, except as provided by the Indenture,
the Lease Agreement or the Reimbursement Agreement or the other documents
executed in connection therewith.
(e) To the best of the Company's knowledge and belief,
the Company is not in breach of or default in any material respect
under any applicable law or administrative regulation or any
applicable judgment or decree or any loan agreement, indenture, bond,
note, resolution, agreement or other instrument to which the Company
is a party or to which the Company is otherwise subject, and no event
has occurred and is continuing which, with the passage of time or the
giving of notice, or both, would constitute a default or an event of
default under any such instrument.
(f) There is no action, suit, proceeding or investigation
at law or in equity before or by any court or governmental agency or
body pending or threatened against the Company wherein an adverse
decision, ruling or finding would (i) result in any material and
adverse change in the condition (financial or otherwise), business or
prospects of the Company which would materially and adversely affect
the properties of the Company, and which has not been disclosed in the
Placement Memorandum (ii) materially and adversely affect the
transactions contemplated by this Agreement, or (iii) materially and
adversely affect the validity or enforceability against the Company of
the Lease Agreement, the Reimbursement Agreement, the Remarketing
Agreement or this Agreement.
(g) The Company has the full power and authority to
execute and deliver and to perform its obligations under the Lease
Agreement, the Reimbursement Agreement, the Remarketing Agreement, and
this Agreement and to engage in the transactions contemplated thereby
and by the Placement Memorandum relating to the offer and sale of the
Bonds. The Lease Agreement, the Reimbursement Agreement, the
Remarketing Agreement and this Agreement have been duly authorized
and, when executed and delivered by the respective parties hereto and
thereto, will constitute legal, valid and binding obligations of the
Company enforceable in accordance with their respective terms, except
as enforcement thereof may be limited by bankruptcy, insolvency or
other laws affecting enforcement of creditors' rights and general
principles of equity, and except as the indemnification provisions
hereof may be limited by applicable securities laws or public policy.
(h) The application to the Issuer and the completed
questionnaires, if any, supplied by the Company to the Issuer, Bond
Counsel and/or the Placement Agent or its counsel with respect to the
Project to be financed with the proceeds of the Bonds are true,
correct and complete in all material respects for the purposes for
which supplied.
(i) No consent, approval, authorization or other action
by any governmental or regulatory authority that has not been obtained
is or will be required by the Company for the issuance and sale of the
Bonds or the consummation of the other transactions contemplated
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by the Remarketing Agreement, this Agreement and the Placement
Memorandum, except for such licenses, certificates, approvals,
variances or permits which may be necessary for the construction or
operation of the Project and for which the Company has applied (or for
which the Company will apply in the ordinary course of business) and
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.
(j) The Company authorizes the use by the Placement Agent
of the Placement Memorandum (including the Appendices thereto and all
information incorporated therein by reference), the Lease Agreement,
the Reimbursement Agreement, and this Agreement and the information
therein and herein in connection with the placement of the Bonds.
(k) The Company will not take or omit to take any action
which action or omission will in any way cause the proceeds from the
sale of the Bonds to be applied in a manner contrary to that provided
in the Indenture, and the Lease Agreement.
(l) The Company will deliver all opinions, certificates,
letters and other instruments and documents reasonably required by the
Lease Agreement, the Reimbursement Agreement, the Remarketing
Agreement and this Agreement.
(m) Any certificate of the Company delivered to the
Placement Agent shall be deemed a representation and warranty by the
Company to the Placement Agent as to the statements made therein.
(n) The Company will furnish such information, execute
such instruments and take such other action in cooperation with the
Issuer and the Placement Agent as may be required to qualify the Bonds
for offering and sale under the "blue sky" or other securities laws of
such jurisdictions as the Placement Agent may designate; provided,
however, that the Company shall not be obligated to accept, or consent
to accept, service of process, or to appoint an agent to accept
service of process, outside the State of Alabama or any other state in
which the Company is qualified to do business;
(o) The representations, warranties, agreements and
indemnities contained herein shall survive the Closing and any
investigation made by or on behalf of the Issuer or the Placement
Agent or any such director, officer or any such controlling person as
to any matters described in or related to the transactions
contemplated hereby and by the Placement Memorandum, the Indenture,
the Reimbursement Agreement, the Lease Agreement and the Remarketing
Agreement.
6. The Company shall indemnify the Issuer and the Placement Agent
and shall hold them harmless as follows:
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(a) The Company shall pay and indemnify and hold harmless
the Issuer and any person who "controls" the Issuer within the meaning
of Section 15 of the Securities Act of 1993, as amended, and any
member, officer, director, trustee, official, employee and agent of
the Issuer, and each person, if any, who has the power, directly or
indirectly, to direct or cause the direction of the management and
policies of the Issuer pursuant to the Act or the Issuer's regulations
or bylaws (each an "Issuer Indemnified Party", and collectively, the
"Issuer Indemnified Parties") from any loss, claim, damage, tax,
penalty or expense (including reasonable attorneys' fees and
expenses), or liability of any nature due to any and all suits,
actions, legal or administrative proceedings, or claims arising or
resulting from or in any way connected with: (i) the financing of the
Project or the installation, operation, use, or maintenance of the
properties of the Company, (ii) any act, failure to act, or
misrepresentation by any person in connection with the issuance, sale,
delivery or remarketing of the Bonds, or (iii) any act, failure to
act, or misrepresentation by the Issuer in connection with this
Agreement or any other document involving the Issuer in this matter.
If any suit, action or proceeding is brought against any of the Issuer
Indemnified Parties, that suit, action or proceeding shall be defended
by counsel to the Issuer or the Company, as the Issuer shall
determine. If the defense is by counsel to the Issuer, the Company
shall indemnify the Issuer Indemnified Parties for the reasonable cost
of that defense including reasonable attorneys' fees and expenses. If
the Issuer determines that the Company shall defend the Issuer or any
Issuer Indemnified Parties, the Company shall immediately assume the
defense at its own cost. Neither the Issuer nor the Company shall be
liable for any settlement of any proceeding made without each of their
consent (which consent shall not be unreasonably withheld).
(b) The Company shall indemnify and hold harmless the
Placement Agent and any person who "controls" the Placement Agent
within the meaning of Section 15 of the Securities Act of 1933, as
amended, and any officer, director, official, employee and agent of
the Placement Agent (each an "Agent Indemnified Party" and
collectively, the "Agent Indemnified Parties") from any loss, claim,
damage, tax, penalty, or expense (including reasonable attorneys' fees
and expenses), or liability of any nature due to any and all suits,
actions, legal or administrative proceedings, or claims arising or
resulting from, or in any way connected with: (i) the financing of the
Project or the installation, operation, use, or maintenance of the
properties of the Company, (ii) any act, failure to act, or
misrepresentation by the Company or any director, officer, employee,
agent, or independent contractor of the Company in connection with the
issuance, sale, delivery or remarketing of the Bonds, or (iii) any
act, failure to act, or misrepresentation by the Issuer or the
Placement Agent in connection with this Agreement or any other
document involving the Issuer or the Placement Agent in this matter
(except to the extent any such act, failure to act or
misrepresentation by the Placement Agent or any director, officer,
employee, agent, or independent contractor of the Placement Agent
involved the gross negligence or willful misconduct of the Placement
Agent or any of its directors, officers, employees, agents or
independent contractors); provided, however, that no such
indemnification shall be extended to the Placement Agent in connection
with any matter to the extent that the Placement Agent
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is required to indemnify the Company or the Company Indemnified
Parties (as defined in Section 7(b) hereof) therefor pursuant to
Section 7(b) of this Agreement. In case any claim shall be made or
any action shall be brought against one or more of the Agent
Indemnified Parties, the Agent Indemnified Parties seeking indemnity
hereunder shall promptly notify the Company in writing, and the
Company shall promptly assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Placement Agent,
the payment of all expenses and the right to negotiate and consent to
settlement. If any of the Agent Indemnified Parties is advised in an
opinion of counsel that there may be legal defenses available to it
which are adverse to or in conflict with those available to the
Company, or that the defense of such Agent Indemnified Party should be
handled by separate counsel, the Company shall not have the right to
assume the defense of such Agent Indemnified Party, but shall be
responsible for the reasonable fees and expenses of counsel retained
by the Agent Indemnified Party in assuming its own defense, and
provided also that if the Company shall have failed to assume the
defense of such action or to retain counsel reasonably satisfactory to
the Company, within a reasonable time after written notice of the
commencement of such action, the fees and expenses of counsel retained
by the Agent Indemnified Parties shall be paid by the Company.
Notwithstanding and in addition to any of the foregoing, any one or
more of the Agent Indemnified Parties shall have the right to employ
separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the
expense of such Agent Indemnified Parties, unless the employment of
such counsel had been specifically authorized, in writing, by the
Company. The Company shall not be liable for any settlement of any
such action effected without its written consent, but if settled with
the consent of the Company or if there is a final judgment for the
plaintiff in any such action with or without consent, the Company
shall indemnify and hold harmless the Agent Indemnified Parties from
and against any loss or liability by reason of such settlement or
judgment.
(c) The Company shall also indemnify the Issuer
Indemnified Parties and the Agent Indemnified Parties for all
reasonable costs and expenses, including reasonable attorneys' fees
and expenses, incurred in: (i) enforcing any obligation of the Company
under this Agreement or any related agreement, (ii) taking any action
requested by the Company, (iii) taking any action required by this
Agreement or any related agreement, or (iv) taking any action
considered necessary by the Issuer or the Placement Agent and which is
authorized by this Agreement or any related agreement.
(d) Any provision of this Agreement or any other
instrument or document executed and delivered in connection therewith
to the contrary notwithstanding, the Issuer retains the right to (i)
enforce any applicable federal or state law or regulation pertaining
to the Issuer and (ii) enforce any rights accorded the Issuer by
federal or state law or regulation, and nothing in this Agreement
shall be construed as an express or implied waiver thereof.
(e) The indemnity provided herein is not intended to
supersede any indemnity to which the Issuer is entitled to under the
Lease Agreement. Any indemnity provided herein
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is in addition to any other indemnification provided by the Company to
the Indemnified Parties.
7. The Placement Agent shall indemnify the Issuer and the Company
and shall hold them harmless as follows:
(a) The Placement Agent shall indemnify, defend and hold
harmless the Issuer and the Issuer Indemnified Parties to the fullest
extent permitted by law, from and against any and all losses, claims,
damages, demands, liabilities, costs or expenses, including reasonable
attorneys' fees and expenses related thereto, (i) arising out of or
based upon an untrue statement or misleading statement or alleged
untrue statement or alleged misleading statement of a material fact
contained in the Placement Memorandum or arising out of or based upon
the omission or alleged omission of the Placement Agent to make the
statements therein, in light of the circumstances under which they
were made, 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 in reliance upon and in conformity with information
furnished to the Issuer or the Company in writing by the Placement
Agent, including, without limitation, the information therein
describing the Placement Agent or its activities with respect to the
Bonds, contained under the caption "PLACEMENT OF THE BONDS" and (ii)
to the extent of the aggregate amount paid in settlement of any
litigation commenced or threatened arising from a claim based upon any
such untrue statement or omission, if such settlement is effected with
the written consent of the Placement Agent and (iii) as a result of,
or in connection with, the violation of federal or state securities
laws by the Placement Agent in its sale of the Bonds to the purchasers
thereof.
(b) The Placement Agent shall indemnify, defend and hold
harmless the Company, its directors, officers and each person, if any,
who has the power, directly or indirectly, to direct or cause the
direction of the management and policies of the Company (each a
"Company Indemnified Party," and collectively, the "Company
Indemnified Parties") to the fullest extent permitted by law, from and
against any and all losses, claims, damages, demands, liabilities,
costs or expenses, including reasonable attorneys' fees and expenses
related thereto, (i) arising out of or based upon an untrue statement
or alleged misleading statement of a material fact contained in the
Placement Memorandum or arising out of or based upon the omission or
alleged omission of the Placement Agent to make the statement therein,
in light of the circumstances under which they were made, 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 in
reliance upon and in conformity with information furnished to the
Company or the Issuer in writing by the Placement Agent, including,
without limitation, the information therein describing the Placement
Agent or its activities with respect to the Bonds, contained under the
caption "PLACEMENT OF THE BONDS" and (ii) to the extent of the
aggregate amount paid in settlement of any litigation commenced or
threatened arising
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from a claim based upon any such untrue statement or omission, if such
settlement is effected with the written consent of the Placement
Agent.
(c) The Placement Agent shall indemnify, defend and hold
harmless the Issuer Indemnified Parties and the Company Indemnified
Parties to the fullest extent permitted by law from and against any
and all losses, claims, damages, demands, liabilities, costs or
expenses (including reasonable attorneys' fees and expenses) caused by
(i) the failure of the Placement Agent to comply with the registration
or qualification requirements applicable to the Placement Agent or the
Bonds under any securities or "blue sky" laws of any state in which
such registration or qualification is required and (ii) the violation
of any applicable federal or state securities laws in connection with
the sale of the Bonds.
(d) In case any claim shall be made or any action shall
be brought against one or more of the Issuer Indemnified Parties or
the Company Indemnified Parties based upon information furnished in
writing to the Issuer or the Company by the Placement Agent,
describing therein the Placement Agent or its activities with respect
to the Bonds or pursuant to the preceding paragraph, the Issuer
Indemnified Parties or the Company Indemnified Parties seeking
indemnity shall promptly notify the Placement Agent in writing, and
the Placement Agent shall promptly assume the defense thereof,
including the employment of counsel reasonably satisfactory to the
Issuer and the Company, the payment of all expenses and the right to
negotiate and consent to settlement. If any of the Issuer Indemnified
Parties or the Company Indemnified Parties is advised in an opinion of
counsel that there may be legal defenses available to it which are
adverse to or in conflict with those available to the Placement Agent,
or that the defense of such Issuer Indemnified Party or Company
Indemnified Party should be handled by separate counsel, the Placement
Agent shall not have the right to assume the defense of such Issuer
Indemnified Party or Company Indemnified Party, but shall be
responsible for the reasonable fees and expenses of counsel retained
by the Issuer Indemnified Party and/or Company Indemnified Party in
assuming its own defense, and provided also that if the Placement
Agent shall have failed to assume the defense of such action or to
retain counsel reasonably satisfactory to the Issuer or the Company,
as the case may be, within a reasonable time after written notice of
the commencement of such action, the fees and expenses of counsel
retained by the Issuer Indemnified Parties and/or the Company
Indemnified Parties, as the case may be, shall be paid by the
Placement Agent. Notwithstanding and in addition to any of the
foregoing, any one or more of the Issuer Indemnified Parties and/or
the Company Indemnified Parties, as the case may be, shall have the
right to employ separate counsel in any such action and to participate
in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Issuer Indemnified Parties and/or the
Company Indemnified Parties, as the case may be, unless the employment
of such counsel had been specifically authorized, in writing, by the
Placement Agent. The Placement Agent shall not be liable for any
settlement of any such action effected without its written consent,
but if settled with the consent of the Placement Agent or if there is
a final judgment for the plaintiff in any such action with or without
consent based on the preceding paragraph, the Placement Agent shall
indemnify and
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hold harmless the Issuer Indemnified Parties and the Company
Indemnified Parties from and against any loss or liability by reason
of such settlement or judgment.
8. The Company further agrees as follows:
(a) The Company approves and ratifies the use by the
Placement Agent prior to the date hereof of a Preliminary Placement
Memorandum (the "Preliminary Placement Memorandum") in connection with
the offering of the Bonds.
(b) The Company ratifies, confirms and consents to the
use of the Preliminary Placement Memorandum, drafts of the Preliminary
Placement Memorandum and the Placement Memorandum by counsel to the
Placement Agent in obtaining necessary qualification, exemption,
determination or continuation of any of the foregoing under applicable
securities laws.
(c) The Company approves the form of and authorizes the
Placement Agent to prepare, use and distribute the Placement
Memorandum in the final form in connection with the placement and sale
of the Bonds.
(d) The Company shall provide to the Placement Agent, on
the date hereof, sufficient copies of the Placement Memorandum to
enable the Placement Agent to comply with the requirements of SEC Rule
15c2-12(b)(4), Rule G-32 of the Municipal Securities Rulemaking Board
and with other applicable legal requirements.
(e) No amendment or supplement to the Placement
Memorandum shall be made without the written approval of the Placement
Agent. If, during the period from the date of this Agreement to and
including the date which is 90 days following the End of the
Underwriting Period for the Bonds (as such term is hereinafter
defined) an event occurs affecting the Company of which the Company
has knowledge and which might or would cause the Placement Memorandum
to contain any untrue statement of a material fact or omit to state a
material fact necessary to be stated therein for the purpose for which
it is to be used or to make the statements therein, in the light of
the circumstances under which they were made, not misleading in any
material respect, the Company will notify the Placement Agent and the
Issuer, and if in the opinion of the Placement Agent such event
requires an amendment or supplement to the Placement Memorandum, the
Company will amend or supplement the Placement Memorandum in a form
and in a manner approved by the Placement Agent and the Issuer and
furnish to the Placement Agent and the Issuer (i) a reasonable number
of copies of the amendment or supplement and (ii) if such notification
shall be subsequent to the date of the Closing, such legal opinions,
certificates, instruments and other documents as the Placement Agent
may reasonably deem necessary to evidence the truth and accuracy of
such amendment or supplement. The cost of providing any amendment or
supplement during the period prior to and including the date which is
90 days following the End of the Underwriting Period for the Bonds
shall be paid by the Company.
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(f) As used herein, "End of the Underwriting Period" for
the Bonds shall mean the date on which the End of the Underwriting
Period for the Bonds has occurred under SEC Rule 15c2-12; provided,
however, that the Placement Agent shall be entitled to treat the
Closing Date as the End of the Underwriting Period for the Bonds.
9. By 11:00 a.m., Central Daylight Savings Time, on April 23,
1997 (the "Closing Date"), the certificates, opinions, commitments and other
documents required by Section 10 hereof shall be executed and delivered and
payment of such fees as are called for herein shall be made (such execution,
delivery and payment, together, being referred to as the "Closing"). The
Closing shall take place at the offices of Bodman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
Detroit, Michigan, or such other location as may be agreed upon by the Issuer,
the Company and the Placement Agent. At least two (2) business days prior to
the Closing Date, the Issuer will deliver the Bonds to the Placement Agent in
definitive form duly executed (or, at the option of the Placement Agent, in
book entry form under the book entry system maintained by The Depository Trust
Company), together with the other documents herein mentioned, and the Placement
Agent will accept such delivery and facilitate the payment of the purchase
price of the Bonds in federal funds.
10. The obligations of the Placement Agent hereunder shall be
subject to the performance by the Issuer and the Company of their respective
obligations to be performed hereunder at and prior to the Closing, to the
accuracy in all material respects, in the reasonable judgment of the Placement
Agent, of the representations and warranties of the Issuer and the Company
herein as of the date hereof and as of the Closing and, in the reasonable
discretion of the Placement Agent, to the following conditions, including the
delivery by the Issuer and the Company, as the case may be, of the Closing
Documents (hereinafter defined) enumerated herein, in each case in form and
substance reasonably satisfactory to the Placement Agent's counsel, as of the
Closing:
(a) At the time of the Closing, (i) the resolution
authorizing the Bonds, the Indenture, the Lease Agreement, the
Reimbursement Agreement, the Letter of Credit, the confirmation of the
Letter of Credit, this Agreement and the Remarketing Agreement shall
be in full force and effect in the form heretofore approved by the
Issuer, the Company, the Credit Obligor, the Confirming Bank and the
Trustee, as the case may be, and none of the foregoing documents shall
have been amended, repealed, modified or supplemented from the forms
thereof as of the date hereof, or as may have been approved in writing
by the Placement Agent and (ii) the Issuer and the Company shall have
duly adopted and there shall be in full force and effect such other
resolutions as, in the opinion of Bond Counsel and the Placement
Agent's counsel, are necessary and appropriate in connection with the
transactions contemplated hereby and by the Placement Memorandum.
(b) At or prior to the Closing, the Issuer shall have
duly executed and delivered, and the Trustee shall have authenticated,
the Bonds, and at the time of the Closing the proceeds derived from
the sale of the Bonds shall be deposited and applied for the purposes
described in the Placement Memorandum and as provided in the
Indenture.
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15
(c) At or prior to the Closing, the Placement Agent shall
have received the following documents (the "Closing Documents"):
(i) the unqualified approving opinion of Bond
Counsel, dated the Closing Date, and the supplemental opinion
of Bond Counsel, dated the Closing Date and addressed to the
Placement Agent and the Issuer in substantially the form and
substance satisfactory to each of them;
(ii) [reserved];
(iii) the opinion of counsel to the Company, dated
the Closing Date and addressed to the Issuer, the Trustee, the
Placement Agent and the Credit Obligor, in substantially the
form and substance satisfactory to each of them;
(iv) the opinion of counsel to the Credit Obligor,
dated the Closing Date, and addressed to the Issuer, the
Company, the Trustee, the Placement Agent and Bond Counsel, in
form and substance reasonably satisfactory to the Placement
Agent;
(v) the opinion of counsel to the Confirming
Bank, dated the Closing Date, and addressed to the Issuer, the
Company, the Trustee, the Placement Agent and Bond Counsel, in
form and substance reasonably satisfactory to the Placement
Agent;
(vi) a certificate, dated the Closing Date, of the
Issuer executed on its behalf by an authorized officer thereof
to the effect that (A) the representations and warranties of
the Issuer contained herein are true and correct in all
respects on and as of the Closing Date with the same effect as
if made on the Closing Date, (B) the Issuer has complied with
all agreements and conditions of this Agreement to be
performed or satisfied by the Issuer at or prior to the
Closing Date and (C) no event affecting the Issuer has
occurred since the date of the Placement Memorandum (as
amended or supplemented to date) which should be disclosed in
the Placement Memorandum for the purposes for which it is to
be used or which it is necessary to disclose therein in order
to make the statements and information therein not misleading
in any material respect;
(vii) a certificate, dated the Closing Date, of the
Company executed on its behalf by an authorized representative
thereof to the effect that (A) the representations and
warranties of the Company contained herein are true and
correct in all respects on and as of Closing Date with the
same effect as if made on the Closing Date, (B) the Company
has complied with all agreements and conditions of this
Agreement to be performed or satisfied by the Company at or
prior to the Closing Date and (C) no event affecting the
Company has occurred since the date of
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the Placement Memorandum (as amended or supplemented to date)
which should be disclosed in the Placement Memorandum for the
purposes for which it is to be used or which it is necessary
to disclose therein in order to make the statements and
information therein not misleading in any material respect;
(viii) copies of the preliminary and final Placement
Memorandum, in a quantity as reasonably determined by the
Placement Agent, duly executed by or on behalf of the Issuer;
(ix) a copy of all resolutions duly adopted by the
Company authorizing or approving the execution and delivery of
the documents required to be executed and delivered by the
Company or approving, as necessary, the forms of the Indenture
and the Bonds, certified by an authorized representative of
the Company;
(x) good standing certificates for the Company
issued by the Secretary of the State of Michigan and the
Secretary of the State of Alabama;
(xi) evidence that Standard & Poor's has issued a
rating for the Bonds that is not lower than AA-/A-1+ and that
such rating is in effect at the Closing Date and is not then
being reviewed;
(xii) a certificate of the Trustee, in form and
substance satisfactory to the Placement Agent, the Company and
the Issuer, to the effect that all moneys and securities
delivered to the Trustee under and pursuant to the Indenture
have been duly deposited to the credit of the appropriate
funds established under or in accordance with the Indenture or
otherwise applied as provided in the Indenture and that the
Trustee has no knowledge of any default under the Indenture;
(xiii) copies of all closing documents (not
otherwise specified for delivery hereunder) identified for
delivery in the most recent closing list for the Closing
provided by Bond Counsel, duly executed, if applicable, by the
respective parties thereto; and
(xiv) such additional legal opinions, certificates,
proceedings, instruments and other documents as counsel to the
Placement Agent, Bond Counsel and the Issuer may reasonably
request to evidence compliance by the Issuer and the Company
with legal requirements, the truth and accuracy, as of the
time of the Closing, of the respective representations and
warranties of the Company and the Issuer herein and the due
performance or satisfaction by the Issuer and the Company at
or prior to such time of all agreements then to be performed
and all conditions then to be satisfied by the Issuer and the
Company or as otherwise may be deemed necessary by such
counsel in connection with the issuance of the Bonds.
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(d) If the Issuer or the Company shall be unable to
satisfy the conditions to the obligations of the Placement Agent
contained in this Agreement, or if the obligations of the Placement
Agent hereunder may be terminated for any reason permitted by this
Agreement, then this Agreement may be terminated by the Placement
Agent and if so terminated neither the Placement Agent nor the Company
or the Issuer shall be under any obligations hereunder; provided,
however, that the respective obligations to pay expenses, as provided
in Section 13 hereof, and the respective indemnification obligations
contained in Section 6 hereof, shall continue in full force and
effect.
11. For a period of 90 days after the Closing (a) the Issuer will
not adopt any amendment of or supplement to the Placement Memorandum to which
the Placement Agent shall object in writing or which shall be disapproved by
counsel for the Placement Agent and (b) if any event relating to or affecting
the Issuer and the Company shall occur as a result of which it is necessary, in
the opinion of counsel to the Placement Agent, to amend or supplement the
Placement Memorandum in order to make the Placement Memorandum not misleading
in light of the circumstances existing at the time it is delivered to the
initial purchasers of the Bonds, the Issuer and the Company will forthwith
prepare and furnish to the Placement Agent a reasonable number of copies of an
amendment of or supplement to the Placement Memorandum (in form and substance
satisfactory to counsel for the Placement Agent and at the Company's expense)
which will amend or supplement the Placement Memorandum so that it will not
contain an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time the Placement Memorandum is delivered to the
initial purchasers of the Bonds, not misleading. For purposes of this Section,
the Issuer and the Company will each furnish such information with respect to
themselves as the Placement Agent may from time to time request.
12. The Placement Agent shall have the right to cancel its
obligations to place the Bonds if, between the date hereof and the Closing
Date:
(a) legislation shall be enacted, or actively considered
for enactment, by the Congress or recommended by the President of the
United States to the Congress for passage, or favorably reported for
passage to either house of the Congress by any committee of such house
to which such legislation has been referred for consideration, a
decision by a court of the United States or the United States Tax
Court shall be rendered, or a ruling, regulation or official statement
by or on behalf of the Treasury Department of the United States, the
Internal Revenue Service or other agency or department of the United
States shall be made or proposed to be made which has the purpose or
effect, directly or indirectly, of imposing federal income taxes upon
revenues or other income to be derived by the Issuer under the Lease
Agreement, or upon interest on the Bonds;
(b) any other action or event shall have transpired which
has the purpose or effect, directly or indirectly, of materially and
adversely affecting the federal income tax consequences of any of the
transactions contemplated hereby or by the Placement
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Memorandum, and, in the reasonable opinion of the Placement Agent,
such action or event pertaining to the federal income tax consequences
referenced above materially and adversely affects the market for the
Bonds or the sale, at the contemplated offering price by the Placement
Agent, of the Bonds;
(c) legislation shall be enacted or actively considered
for enactment by the Congress, with an effective date on or prior to
the Closing Date, or a decision by a court of the United States shall
be rendered, or a ruling or regulation by the Securities and Exchange
Commission or other governmental agency having jurisdiction over the
subject matter shall be made, the effect of which is that (i) the
Bonds are not exempt from the registration, qualification or other
requirements of the Securities Act of 1933, as amended and as then in
effect, or the Securities Exchange Act of 1934, as amended and as then
in effect, or (ii) the Indenture is not exempt from the registration,
qualification or other requirements of the Trust Indenture Act of
1939, as amended and as then in effect;
(d) a stop order, ruling or regulation by the Securities
and Exchange Commission shall be issued or made, the effect of which
is that the issuance, offering or sale of the Bonds, as contemplated
hereby or by the Placement Memorandum, is in violation of any
provision of the Securities Act of 1933, as amended and as then in
effect, the Securities Exchange Act of 1934, as amended and as then in
effect, or the Trust Indenture Act of 1939, as amended and as then in
effect;
(e) there shall occur any outbreak of hostilities or any
national or international calamity or crisis or a financial crisis the
effect of which on the financial markets of the United States is such
as, in the reasonable judgment of the Placement Agent, would
materially and adversely affect the market for the Bonds or the sale,
at the contemplated offering price by the Placement Agent, of the
Bonds;
(f) a general suspension of trading on the New York Stock
Exchange is in force, the effect of which on the financial markets of
the United States in the reasonable judgment of the Placement Agent,
as such as would materially and adversely affect the market for the
Bonds or the sale, at the contemplated offering price, by the
Placement Agent, of the Bonds;
(g) a general banking moratorium is declared by federal
or state (including specifically Illinois and New York) authorities,
the effect of which on the financial markets of the United States in
the reasonable judgment of the Placement Agent, as such as would
materially adversely affect the market for the Bonds or the sale, at
the contemplated offering price by the Placement Agent, of the Bonds;
(h) there occurs any material adverse change in the
affairs, operations or financial conditions of the Company except as
set forth in or contemplated by the Placement Memorandum;
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(i) the Placement Memorandum is not executed, approved
and delivered as provided herein;
(j) any rating of the Confirming Bank or the Bonds by a
national rating agency shall be withdrawn or downgraded;
(k) in the reasonable judgment of the Placement Agent,
the market price of the Bonds, or the market price generally of
obligations of the general character of the Bonds, might be adversely
affected because (i) 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, or (ii) the New York Stock Exchange or other national
securities exchange, or any governmental authority, shall impose, as
to the Bonds or similar obligations, any material restrictions not now
in force, or increase materially those now in force, with respect to
the extension of credit by, or the charge to the net capital
requirements of, the Placement Agent; or
(l) other than disclosed in the Placement Memorandum, any
litigation shall be instituted, pending or threatened to restrain or
enjoin the issuance, sale or delivery of the Bonds or in any way
protesting or affecting any authority for or the validity of the
Bonds, the resolution of the Issuer authorizing the Bonds, the
Indenture, the Agreement, the Remarketing Agreement, the Letter of
Credit, the confirmation of the Letter of Credit, or the existence or
powers of the Issuer or the Company.
13. Whether or not the transactions contemplated by this Agreement
are consummated, all expenses and costs of the Issuer incident to the
performance of its obligations in connection with the authorization, issuance
and delivery of the Bonds to the Placement Agent, shall be paid by the Company.
14. Any notice or other communication to be given under this
Agreement shall be given by mail or courier delivery or by facsimile
transmission as follows:
If to the Company:
▇▇▇▇▇▇▇ Industries, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
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If to the Issuer:
The Industrial Development Board of the City of ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Telephone:
Telecopier:
If to the Placement Agent:
LaSalle National Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Capital Markets Group
Telephone number: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
All notices or communications hereunder by any party shall be given
and served upon each other party.
15. The approval of the Placement Agent when required hereunder or
the determination of satisfaction as to any document referred to herein shall
be in writing signed by the Placement Agent and delivered to the party
requesting such approval or determination of satisfaction.
16. This Agreement is made solely for the benefit of the Issuer,
the Company and the Placement Agent and no other person shall acquire or have
any rights hereunder or by virtue hereof except as otherwise provided in
Sections 6 and 7 hereof. All representations, warranties and agreements of
authority in this Agreement shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Placement Agent and
shall survive the delivery of and payment for the Bonds. The covenants and the
agreements of each of the respective parties hereto shall survive the delivery
of and payment for the Bonds and shall remain in full force and effect
thereafter.
17. 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.
18. 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.
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Very truly yours,
LASALLE NATIONAL BANK,
as Placement Agent
By:
-------------------------------------
Title:
----------------------------------
Accepted:
THE INDUSTRIAL DEVELOPMENT BOARD
OF THE CITY OF DEMOPOLIS
By:
-------------------------------------
Title:
----------------------------------
Approved:
▇▇▇▇▇▇▇ OF ALABAMA, INC.
By:
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary
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