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Exhibit 10.58
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REMARKETING AGREEMENT
BETWEEN
PRIORITY FULFILLMENT SERVICES, INC.
(THE "OBLIGOR")
AND
COMERICA SECURITIES
(THE "REMARKETING AGENT")
DATED AS OF NOVEMBER 1, 2004
RELATING TO
$5,000,000
MISSISSIPPI BUSINESS FINANCE CORPORATION
TAXABLE VARIABLE RATE DEMAND LIMITED OBLIGATION
REVENUE BONDS, SERIES 2004
(PRIORITY FULFILLMENT SERVICES, INC. PROJECT)
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TABLE OF CONTENTS
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Section 1.
Duties................................................................
1
Section 2. Disclosure
Statement..................................................
2
Section 3. Indemnification and
Contribution...................................... 2
Section 4. Fees and
Expenses.....................................................
4
Section 5. Remarketing Agent Not
Liable for Failures by Purchasers of Bonds...... 4
Section 6. Representations and
Warranties of the Obligor......................... 4
Section 7.
Termination...........................................................
5
Section 8.
Miscellaneous.........................................................
5
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REMARKETING AGREEMENT
THIS
REMARKETING AGREEMENT (the "Agreement") dated as of November 1,
2004
by and between PRIORITY FULFILLMENT
SERVICES, INC., a Delaware corporation (the
"Obligor") and COMERICA SECURITIES (the
"Remarketing Agent").
WHEREAS,
the Mississippi Business Finance Corporation (the "Issuer") has
appointed the Remarketing Agent (and the
Remarketing Agent hereby accepts the
appointment) as Remarketing Agent under the
Trust Indenture dated as of the date
of this Agreement (the "Indenture") between
the Issuer and U.S. Bank National
Association, as trustee (the "Trustee"),
relating to the Issuer's $5,000,000
principal amount Taxable Variable Rate
Demand Limited Obligation Revenue Bonds,
Series 2004 (Priority Fulfillment Services,
Inc. Project) (the "Bonds"); and
WHEREAS,
the Obligor has entered into a Loan Agreement dated as of the
date of this Agreement (the "Loan
Agreement") between the Issuer and the
Obligor; and
WHEREAS,
the Remarketing Agent has been appointed by the Issuer to use
its
best efforts to remarket the Bonds subject
to optional or mandatory purchase and
to determine the interest rate necessary to
remarket the Bonds at par; and
WHEREAS,
the Obligor and Remarketing Agent desire to make additional
provisions regarding the Remarketing
Agent's role as Remarketing Agent for the
Bonds with respect to its obligations
described in Section 203 of the Indenture.
Terms used in this Agreement without being
defined have the meanings given them
in the Indenture.
NOW,
THEREFORE, the Obligor and Remarketing Agent hereby agrees as
follows:
SECTION 1.
DUTIES.
(a) The Remarketing Agent will perform the duties specified as
Remarketing Agent under the Indenture,
including, but not limited to, the
determination of interest rates as set
forth in Section 110 of the Indenture and
the remarketing of the Bonds as set forth
in Section 203 of the Indenture.
Unless the Remarketing Agent is otherwise
directed in writing by the Obligor and
except as provided in the next paragraph,
the Remarketing Agent shall use its
best efforts to remarket Bonds subject to
optional or mandatory purchase under
Sections 201 and 202 of the Indenture,
respectively. Bonds which are subject to
mandatory purchase on the Conversion Date,
a proposed Conversion Date or a
Substitution Date shall be remarketed by
the Remarketing Agent only to a buyer
to whom the Remarketing Agent has
delivered, at the time of such remarketing, a
copy of the notice of conversion or notice
of delivery of a Substitute Credit
Facility, as applicable, pursuant to
Section 113(b) of the Indenture. In the
event the Bonds are remarketed pursuant to
a mandatory purchase on the
Conversion Date, a proposed Conversion Date
or a Substitution Date, the
Remarketing Agent shall be entitled to a
fee (mutually agreed upon with the
Obligor prior to the commencement of the
remarketing) in addition to the annual
remarketing fee received pursuant to
Section 4 hereof. In acting as Remarketing
Agent, the
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Remarketing Agent will act as agent and not
as principal except as expressly
provided in this Section 1.
(b) The Remarketing Agent may, if it determines to do so in its
sole
discretion, buy as principal, but it will
not in any event be obligated to do
so, and if it buys Bonds it will have the
same rights as would any other person
holding the Bonds.
SECTION 2.
DISCLOSURE STATEMENT. If the Remarketing Agent determines that
it is necessary or desirable to use a
disclosure statement in connection with
its offering of Bonds (a "Disclosure
Statement"), and in any event upon
conversion of the interest rate on the
Bonds to a Fixed Rate, the Remarketing
Agent will notify the Obligor and the
Obligor will provide the Remarketing Agent
with a Disclosure Statement satisfactory to
the Remarketing Agent and its
Counsel in respect of the Bonds. The
Obligor will supply the Remarketing Agent,
at the Obligor's expense, with such number
of copies of the Disclosure Statement
as the Remarketing Agent requests from time
to time and will amend the document
with respect to the Obligor and any summary
of documents the amendment of which
was approved by the Obligor (and/or the
documents incorporated by reference in
it) so that at all times the document will
not contain any untrue statement of a
material fact or omit to state a material
fact necessary to make the statements
in the document, in light of the
circumstances under which they were made, not
misleading.
SECTION 3.
INDEMNIFICATION AND CONTRIBUTION.
(a) The Obligor will indemnify and hold harmless the
Remarketing
Agent, each of its directors, officers,
employees and agents and each person who
controls the Remarketing Agent within the
meaning of Section 15 of the
Securities Act of 1933, as amended (such
Act being herein called the "Act" and
any such person being herein sometimes
called for purposes of this paragraph (a)
an "Indemnified Party"), against any and
all losses, claims, damages or
liabilities, joint or several, to which
such Indemnified Party may become
subject under any statute or at law or in
equity or otherwise, and will
reimburse any such Indemnified Party for
any legal or other expenses incurred by
it in connection with investigating any
claims against it and defending any
actions, insofar as such losses, claims,
damages, liabilities or actions arise
out of or are based upon any untrue
statements, or alleged untrue statement, of
a material fact with respect to the Obligor
contained in any Disclosure
Statement referred to in Section 2 hereof
or any amendment or supplement
thereto, or any portion of the Disclosure
Statement under the headings
"Introductory Statement," "The Obligor and
the Use of Proceeds," "The Bonds"
(other than the information under the
sub-heading "Book-Entry System"), "Sources
of Payment and Security," "The Letter of
Credit," "The Loan Agreement," "The
Trust Indenture," "The Reimbursement
Agreement," and "The Pledge and Security
Agreement," or the omission or alleged
omission to state therein a mat
