OFFERING AND REMARKETING AGREEMENT

EXHIBIT 10.62

 

 

OFFERING AND REMARKETING AGREEMENT

 

between

 

PROVENA FOODS INC.,

a California corporation

 

and

 

RBC DAIN RAUSCHER, INC.

 

Dated as of December 1, 2003

 

 

TABLE OF CONTENTS

 

 

 

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OFFERING AND REMARKETING AGREEMENT

 

THIS OFFERING AND REMARKETING AGREEMENT, dated as of December 1, 2003 (this “Agreement”), is between PROVENA FOODS INC., a California corporation (the “Corporation”), and RBC DAIN RAUSCHER, INC., a New York corporation (as offering agent, the “Offering Agent”; as remarketing agent, the “Remarketing Agent”; and as Offering Agent and Remarketing Agent, the “Agent”).

 

BACKGROUND

 

The Corporation has determined to issue its Variable/Fixed Rate Demand Bonds (the “Bonds”) in one or more series (each a “Series of Bonds”) pursuant to an Indenture of Trust, dated as of December 1, 2003 (as supplemented and amended from time to time, the “Indenture”), between the Corporation and U.S. Bank National Association, Los Angeles, California, as trustee (the “Trustee”). The proceeds of each Series of Bonds will be made available to the Corporation, and the Corporation will agree to make payments sufficient to pay the principal and purchase price of, premium, if any, and interest on the Bonds of such Series, and certain other expenses, pursuant to the Indenture. The proceeds of each Series of Bonds will be used by the Corporation for its authorized and lawful corporate purposes. To secure a Series of Bonds, the Corporation will have the option of causing to be delivered to the Trustee a letter of credit, bank bond purchase agreement, revolving credit agreement, surety bond or insurance policy, conforming to the requirements of the Indenture, in a stated amount sufficient to secure the payment of principal and purchase price of, and interest and premium on, such Series of Bonds; under the circumstances specified in the Indenture, Enhanced Series may become Unenhanced Series, and Unenhanced Series may become Enhanced Series, as such terms are defined in the Indenture. Each Series of Bonds will be registered in the name of a nominee of The Depository Trust Company (“DTC”), New York, New York.

 

The Indenture contemplates an offering of each Series of Bonds and beneficial interests therein. The Corporation wishes to engage the Offering Agent to perform such activities and duties as are specified herein to apply to the Offering Agent with respect to each Series of Bonds and beneficial interests therein. The Indenture further contemplates the potential purchase of Bonds and beneficial interests therein, from time to time, from each owner of a Bond or beneficial interest therein by one or more purchasers found by the Remarketing Agent in the event of the optional or mandatory tender of the Bonds or beneficial interests therein pursuant to the Indenture. The Corporation wishes to engage the Remarketing Agent to remarket such Bonds and beneficial interests, and to perform such activities and duties as are specified herein to apply to the Remarketing Agent with respect to the Bonds and beneficial interests therein. The Agent, upon the terms and subject to the satisfaction of the conditions contained herein, is willing to enter into such engagements. Thus, in consideration of the foregoing, the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

 

ARTICLE I

 

DEFINITIONS AND INTERPRETATIONS

 

Section 1.01. Definitions. In addition to the words and terms elsewhere defined in this Agreement, the following words and terms as used herein shall have the following meanings, unless the context or use indicates another or different meaning or intent:

 

“Act” means the provisions of the laws of the State of California applicable to the Corporation, as amended.

 

“Adjustable Rate Period Mandatory Tender” means the obligation on the part of a Beneficial Owner to surrender such Beneficial Owner’s Beneficial Interest in the Bonds for purchase on an Adjustable Rate Conversion Date or an Adjustable Rate Reset Date for the related Series of Bonds as provided in the Indenture.

 

“Beneficial Interest” means the interest of a Beneficial Owner in a Bond registered in the name of a nominee of DTC and for which the Remarketing Agent is the DTC Participant.

 

“Beneficial Owner” shall have the meaning assigned to such term in each Offering Memorandum.

 

“Corporate Action” means, collectively, the resolutions duly adopted by the board of directors of the Corporation authorizing (a) the execution and delivery of the Indenture, and (b) the issuance of a Series of Bonds.

 

“Daily Rate Period Mandatory Tender” means the obligation on the part of a Beneficial Owner to surrender such Beneficial Owner’s Beneficial Interest in the Bonds for purchase on a Daily Rate Conversion Date for the related Series of Bonds as provided in the Indenture.

 

“Daily Rate Period Optional Tender” means an election duly made by a Beneficial Owner to request a purchase of all or any authorized portion of such Beneficial Owner’s Beneficial Interest in the Bonds during a Daily Rate Period for the related Series of Bonds on the conditions provided in the Indenture.

 

“Delivery Date” means, collectively, the Initial Delivery Date and each Transfer Date for a Series of Bonds.

 

“DTC Participant” shall have the meaning assigned to such term in each Offering Memorandum.

 

“Fixed Rate Period Mandatory Tender” means the obligation on the part of a Beneficial Owner to surrender such Beneficial Owner’s Beneficial Interest in the Bonds for purchase on the Fixed Rate Conversation Date for the related Series of Bonds as provided in the Indenture.

 

“Floating Rate Period Mandatory Tender” means the obligation on the part of a Beneficial Owner to surrender such Beneficial Owner’s Beneficial Interest in the Bonds for

 

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purchase on a Floating Rate Conversion Date for the related Series of Bonds as provided in the Indenture.

 

“Floating Rate Period Optional Tender” means an election made by a Beneficial Owner to request a purchase of all or any authorized portion of such Beneficial Owner’s Beneficial Interest in the Bonds during a Floating Rate Period for the related Series of Bonds on the conditions provided in the Indenture.

 

“Initial Delivery Date” means the date on which a Series of Bonds is first delivered by the Corporation and payment is received.

 

“Offering Memorandum” means the Offering Memorandum relating to a Series of Bonds, including all appendices thereto, as it may from time to time be amended or supplemented.

 

“Mandatory Tender” means, collectively, a Daily Rate Period Mandatory Tender, a Floating Rate Period Mandatory Tender, an Adjustable Rate Period Mandatory Tender or a Fixed Rate Period Mandatory Tender.

 

“Optional Tender” means, collectively, a Daily Rate Period Optional Tender and a Floating Rate Period Optional Tender.

 

“Program Year” means, with respect to each Series of Bonds, that period of time beginning on the Initial Delivery Date and ending on the day preceding the anniversary date of the Initial Delivery Date, and, thereafter, each period beginning on the anniversary date of the Initial Delivery Date and ending on the day preceding the next succeeding anniversary date of the Initial Delivery Date.

 

“Transfer Date” means, with respect to each Series of Bonds (a) with respect to a Beneficial Interest which is the subject of an Optional Tender, the Business Day designated by the tendering Beneficial Owner for the purchase of such Beneficial Owner’s Beneficial Interest in the Bonds of such Series; (b) with respect to a Beneficial Interest which is the subject of a Mandatory Tender, the Daily Rate Conversion Date, the Floating Rate Conversion Date, the Adjustable Rate Conversion Date, the Adjustable Rate Reset Date, the Substitution Date, or the Fixed Rate Conversion Date, as appropriate, for the Bonds of such Series; and (c) with respect to Corporation Bonds and Pledged Bonds of such Series, the date upon which the Corporation’s Beneficial Interest in the Corporation Bonds or Pledged Bonds is to be transferred to the purchaser thereof.

 

“Transfer Restrictions” means such restrictions on the sale and transfer of Bonds and Beneficial Interests as are (a) specified in the opinion of Independent Counsel delivered pursuant to Section 2.05(e), 4.05(b) or 4.05(e) of the Indenture; (b) determined by the Agent (and specified to the Corporation in writing), upon the advice of counsel to the Agent, to be necessary for the sale and transfer of the Bonds and Beneficial Interests to be in compliance with applicable Federal and state securities laws, including, but not limited to, the United States Securities Act of 1933, as amended (the “1933 Act”), the United States Securities Exchange Act of 1934, as amended (the “1934 Act”), and the United States Trust Indenture Act of 1939, as amended (the “1939 Act”); or (c) determined by the Corporation (and specified to the Agent in writing), upon the advice of counsel to the Corporation, to be necessary for the sale and transfer of the Bonds

 

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and Beneficial Interests to be in compliance with applicable Federal and state securities laws, including, but not limited to, the 1933 Act, the 1934 Act and the 1939 Act.

 

Section 1.02. Other Terms. Unless the context or use indicates another or different meaning, all capitalized terms used in this Agreement and not defined herein shall have the meanings specified in the Indenture.

 

Section 1.03. Headings. The headings or titles of the several articles, sections and subsections of this Agreement are solely for convenience of reference and shall not affect the meaning, construction or effect of the provisions hereof.

 

Section 1.04. Interpretations. The singular form of any word used herein shall include the plural, and vice versa, if applicable. The use of a word of any gender shall include all genders, if applicable. This Agreement and all of the terms and provisions hereof shall be construed so as to effectuate the purposes contemplated hereby and to sustain the validity hereof. All references to any person or entity shall be deemed to include any person or entity succeeding to the rights, duties and obligations of such person or entity. References herein to “the Indenture,” when made with respect to particular Series of Bonds, mean and include therein references to the Series Supplements entered into with respect to such Series of Bonds; references herein to “the Indenture,” when made generally, mean and include therein references to all Series Supplements. Certain defined terms used herein relate only to Bonds of Enhanced Series; all references to such terms, as applied to a specific Series of Bonds, shall be of no effect at any time such Series of Bonds constitutes an Unenhanced Series, except with respect to vested rights.

 

ARTICLE II

 

APPOINTMENT AND RESPONSIBILITIES OF OFFERING AGENT

 

Section 2.01. Appointment of Offering Agent. In reliance upon the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Corporation hereby appoints the Offering Agent, and the Offering Agent hereby agrees to act, as exclusive agent for the Corporation in connection with the initial offering, issuance and sale of each Series of Bonds and the Beneficial Interests therein.

 

Section 2.02. Responsibilities of Offering Agent.

 

(a) Offering. The Offering Agent shall use its best efforts to solicit, at the rate of interest established by the Remarketing Agent pursuant to Section 3.02(b) hereof, purchases of each Series of Bonds and the Beneficial Interests therein by sophisticated investors which customarily purchase securities in large denominations at a price of par in connection with the initial sale of each Se