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REMARKETING AGREEMENT® REMARKETING AGREEMENT REMARKETING AGREEMENT dated as of February 15, 2008 (this "Remarketing Agreement") between AVON URBAN RENEWAL AUTHORITY (the "Authority"), a body corporate duly organized and existing as an urban renewal authority under the laws of the State of Colorado, and STIFEL, NICOLAUS & COMPANY, INCORPORATED, as remarketing agent (the "Remarketing Agent'). WITNESSETH WHEREAS, on the date hereof, the Authority issued its "Avon Urban Renewal Authority, Tax Increment Adjustable Rate Revenue Bonds Town Center West Area Urban Renewal Project), Series 2008" in the aggregate principal amount of $25,000,000 (the "Bonds"), pursuant to that certain Indenture of Trust dated as of February 15, 2008 (the "Indenture") by and between the Authority and UMB Bank, n.a., as trustee (the "Trustee"); and WHEREAS, the Bonds are subject to purchase under certain circumstances, as described in the Bonds and in the Indenture; and WHEREAS, the Authority has appointed the Remarketing Agent (and the Remarketing Agent by execution of this Remarketing Agreement hereby accepts the appointment) as Remarketing Agent under the Indenture; and ® WHEREAS, the Authority desires that the Remarketing Agent provide a mechanism for remarketing the Bonds according to the terms and subject to the conditions described herein and in the Indenture. NOW, THEREFORE, for and in consideration of the covenants herein made, the parties hereto hereby agree as follows: Section 1. Definitions. Unless a different meaning clearly appears from the context, all words and terms used herein shall have the respective meanings assigned to them in the Indenture. Section 2. Acceptance of Duties. The Authority has appointed Stifel, Nicolaus & Company, Incorporated as Remarketing Agent under the Indenture, and Stifel, Nicolaus & Company, Incorporated hereby accepts such appointment and agrees to serve as Remarketing Agent for the Bonds and to carry out the duties and obligations of the Remarketing Agent under the Indenture and this Remarketing Agreement, on the terms and conditions set forth herein and in the Indenture. In acting as Remarketing Agent, the Remarketing Agent will act as agent and not as principal except as expressly provided in Section 13 hereof. Section 3. Duties of the Remarketing Agent. The Remarketing Agent hereby agrees: ® (a) to use its best efforts to arrange for the remarketing of any Tendered Bonds delivered to the Trustee for purchase pursuant to the Indenture, including Bank Bonds, except as otherwise provided in the Indenture and this Remarketing Agreement; (b) to compute the interest rate on the Bonds while the Bonds bear interest at the following rates: the Daily Rate, Weekly Rate, Annual Rate, Flexible Pricing Short-Term Rate, Flexible Pricing Long-Term Rate or Fixed Rate, as applicable, and give notices of such computations to the required parties on each applicable Rate Determination Date, all in accordance with the Indenture and this Remarketing Agreement; (c) to hold all moneys delivered to it for the purchase of Bonds for the account of and for the benefit of the Person which shall have so delivered such moneys until the Bonds purchased with such moneys shall have been delivered to or for the account of such Person; (d) to carry out all of the other duties and obligations of the Remarketing Agent under the Indenture; and (e) to keep such books and records, including but not limited to books and records relating to its computations of interest rates for the Bonds, as shall be consistent with prudent industry practice and to make such books and records available for inspection by the Authority, the Trustee and the Bank at all reasonable times. Section 4. Remarketing Agent's Performance. 0 (a) The duties and obligations of the Remarketing Agent as Remarketing Agent shall be determined solely by the express provisions of this Remarketing Agreement and the Indenture, and the Remarketing Agent shall not be responsible for the performance of any duties and obligations other than as are specifically set forth in this Remarketing Agreement and the Indenture, and no implied covenants or obligations shall be read into this Remarketing Agreement or the Indenture against the Remarketing Agent. (b) The Remarketing Agent may rely upon any notice or document given or furnished to the Remarketing Agent and conforming to the requirements of this Remarketing Agreement or the Indenture, and shall be protected in acting upon any such notice or document reasonably believed by it to be genuine and to have been given, signed or presented by the proper party or parties. (c) The Remarketing Agent may rely upon, and is authorized to honor, any telephonic request or direction which the Remarketing Agent reasonably believes, in its sole discretion, to emanate from an authorized representative of the Authority or the Trustee, regardless of the source of such request or direction. Any telephonic request or direction to the Remarketing Agent shall promptly be confirmed in writing; provided, however, that failure to receive any such notice shall not affect the authority of the Remarketing Agent to rely and act upon the request or direction. 0 -2- ® Section 5. Disclosure Statement. (a) If the Remarketing Agent determines that it is necessary or desirable to use a disclosure statement in connection with its offering of the Bonds, the Remarketing Agent will notify the Authority, and the Authority will provide the Remarketing Agent with a disclosure statement (the "Disclosure Statement") satisfactory to the Remarketing Agent and its counsel in respect of the Bonds. The Authority will supply the Remarketing Agent with such number of copies of the Disclosure Statement and documents related thereto as the Remarketing Agent requests from time to time and will amend the Disclosure Statement (and/or the documents incorporated by reference in it) so that at all times the Disclosure Statement will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements in such Disclosure Statement, in the light of the circumstances under which they were made, not misleading. If the Authority does not perform its obligations under this subsection (a), the Remarketing Agent may immediately cease remarketing efforts upon written notice to the Authority. (b) There has previously been prepared and delivered to the Remarketing Agent a copy of the Official Statement dated February 20, 2008 (the "Official Statement"), including financial and other information in respect of the Authority and the Bank. The Authority authorizes the use by the Remarketing Agent of the Official Statement in connection with the remarketing of Bonds. For purposes of this ® Remarketing Agreement, the Official Statement and any other documents provided to the Remarketing Agent pursuant to subsection (a) of this Section shall be considered to be the Disclosure Statement. Section 6. Representations and Warranties of Remarketing Agent. The Remarketing Agent represents and warrants to the Authority as follows: (a) The Remarketing Agent has full power and authority to take all action required to be taken by it under, and to perform and observe the covenants and agreements on its part contained in, this Remarketing Agreement; (b) The Remarketing Agent has, on or before the date hereof, duly taken all action necessary to be taken by it prior to such date for the execution, delivery and performance of this Remarketing Agreement and the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated hereby; (c) This Remarketing Agreement, when executed and delivered to the parties hereto, will constitute a valid and binding obligation of the Remarketing Agent enforceable against the Remarketing Agent in accordance with its terms, except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws, judicial decisions or principles of equity relating to or affecting the enforcement of creditors' rights or contractual obligations generally; ® (d) The execution and delivery of this Remarketing Agreement, the compliance with the terms, conditions or provisions hereof, and the consummation of the -3- transactions herein contemplated do not, upon the date of execution and delivery hereof, violate any presently existing law, regulation, order, writ, injunction or decree of any court or governmental instrumentality applicable to the Remarketing Agent; (e) The Remarketing Agent is either a registered broker-dealer under the Securities Exchange Act of 1934, as amended, or is a Municipal Securities Dealer under Section 13B of such Act or is temporarily exempt from such registration pursuant to rules adopted by the Securities and Exchange Commission and its financial condition is such that it may, in accordance with and pursuant to (i) Rule 15c3-1 promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, (ii) any rule of like import imposed by any national securities exchange of which the Remarketing Agent is a member, and (iii) any restriction imposed by any such exchange or governmental authority, enter into the commitment to remarket Bonds pursuant to this Remarketing Agreement; and (f) The Remarketing Agent has a capitalization of at least $5,000,000 or have a line of credit with a commercial bank or clearing organization in the amount of at least $5,000,000 and shall be authorized by law to perform all the duties contemplated by the Indenture to be performed by the Remarketing Agent and shall have knowledge and experience in the remarketing of securities such as the Bonds and a remarketing portfolio (at the time of such appointment) of at least $100,000,000. Section 7. Conditions To Remarketing Agent's Obligations. The obligations of the Remarketing Agent under this Remarketing Agreement have been undertaken in reliance on, and shall be subject to the accuracy of and compliance with the representations, warranties, covenants and agreements of the Authority contained in the Bond Purchase Agreement dated February 20, 2008 between the Authority and Stifel, Nicolaus & Company, Incorporated (the "Bond Purchase Agreement") as of the date of delivery of this Remarketing Agreement. The obligations of the Remarketing Agent on and as of each date on which Bonds are to be offered and sold pursuant to this Remarketing Agreement are also subject to the following further conditions: (a) The Indenture, the Reimbursement Agreement and the Letter of Credit shall be in full force and effect and shall not have been amended, modified or supplemented in any way which would materially and adversely affect the Bonds, except as may have been agreed to in writing by the Remarketing Agent; and (b) No Event of Default under the Indenture shall have occurred and be continuing. Section 8. Remarketing Agent Compensation. (a) In consideration of the Remarketing Agent's services under this Remarketing Agreement, the Authority shall pay the Remarketing Agent an annual continuing remarketing and administration fee computed at the rate of one-eighth of one percent (0.125%) per annum of the aggregate principal amount of Bonds Outstanding on the date of such payment. Such fee shall be payable annually in arrears on each -4- ® December 1, commencing December 1, 2008. Such fee shall be computed on the basis of the actual number of days elapsed in a year of 365/366 days. (b) The Authority shall pay all expenses in connection with the preparation of any Disclosure Statement. Section 9. Successor Remarketing Agent. The Remarketing Agent may at any time resign and be discharged of the duties and obligations created by the Indenture or removed in accordance with Section 8.16 of the Indenture. If a successor Remarketing Agent shall be appointed pursuant to the Indenture, all references herein to the "Remarketing Agent" shall thereafter refer to such successor. Section 10. Delivery and Approval of Amendments to Indenture Etc. Prior to the execution of any amendment or supplement to the Indenture, the Reimbursement Agreement or the Letter of Credit, or the delivery of a Substitute Reimbursement Agreement or Alternate Letter of Credit, the Authority shall deliver to the Remarketing Agent a copy of such amendment, supplement, Substitute Reimbursement Agreement or Alternate Letter of Credit. Section 11. Authority's Remedy. Except as provided in Section 12 hereof, the Authority's remedy against the Remarketing Agent under this Agreement in the event of a breach by the Remarketing Agent of its obligations hereunder shall be the right to the return of any fees paid to the Remarketing Agent hereunder during such time as the Remarketing Agent ® breached or failed to perform its obligations hereunder and/or the removal of the Remarketing Agent hereunder. The Authority acknowledges and agrees that any breach of this Remarketing Agreement by the Remarketing Agent shall not be a defense, setoff or otherwise be deemed to excuse performance by the Authority of its obligations under the Reimbursement Agreement. Section 12. Public Contract for Services. The Remarketing Agent qualifies as a "contractor" pursuant to §8-17.5-101(2), C.R.S. and the Remarketing Agent hereby certifies that, as of the date hereof, the Remarketing Agent does not knowingly employ or contract with an illegal alien, and the Remarketing Agent has participated or attempted to participate in the "Basic Pilot Program" (as defined in §8-17.5-101(1), C.R.S.) in order to confirm the employment eligibility of all employees who are newly hired for employment in the United States. In compliance with §8-17.5-102(2), C.R.S., it is hereby agreed: (a) The Remarketing Agent shall not knowingly employ or contract with an illegal alien to perform work described in this Agreement (the "Banking Services") or enter into a contract with a subcontractor that fails to certify to the Remarketing Agent that the subcontractor shall not knowingly employ or contract with an illegal alien to perform the Banking Services. . (b) The Remarketing Agent has confirmed or attempted to confirm the employment eligibility of all employees who are newly hired for employment in the United States through participation in the Basic Pilot Program or shall apply to participate in the Basic Pilot Program every three months until the Remarketing Agent is accepted or until termination of this Agreement, whichever is earlier. -5- (c) The Remarketing Agent shall not use Basic Pilot Program procedures to undertake pre-employment screening of job applicants while performing the Banking Services. 0 (d) If the Remarketing Agent obtains actual knowledge that a subcontractor performing Banking Services knowingly employs or contracts with an illegal alien, the Remarketing Agent shall be required to: (i) notify the subcontractor and the District within three days that the Remarketing Agent has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and (ii) terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) the subcontractor does not stop employing or contracting with the illegal alien; except that the Remarketing Agent shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. The Remarketing Agent shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that such department is undertaking pursuant to §8-17.5-102(5) C.R.S. If the Remarketing Agent violates any provision contained in this Section, the Authority may remove the Remarketing Agent notwithstanding any other provisions contained herein or in the Indenture. If the Remarketing Agent is so removed pursuant to this provision, the Remarketing Agent shall be liable for actual and consequential damages.to the Authority. Section 13. Dealing in Bonds by Remarketing Agent. The Remarketing Agent, in its individual capacity, may in good faith buy, sell, own, hold and deal in any of the Bonds, and may join in any action which any Bond owners may be entitled to take with like effect as if it did not act in any capacity hereunder. The Remarketing Agent, in its individual capacity, either as principal or agent, may also engage in or be interested in any financial or other transaction with the Authority, and may act as depository, trustee or agent for other obligations of the Authority as freely as if it did not act in any capacity hereunder. Section 14. Intention of Parties. It is the intention of the parties hereto that no purchase, sale or transfer of any Bond, as herein provided and provided in the Indenture, shall constitute or be construed to be extinguishment of any Bond or the indebtedness represented thereby or the re-issuance of any Bond. Section 15. Fails. The Remarketing Agent will not be liable to the Authority, the Trustee or the Bank on account of the failure of any person to whom the Remarketing Agent has sold a Bond to pay for such Bond or to deliver any document in respect of the sale. It is understood and agreed that the Remarketing Agent shall not be obligated to advance its own funds to purchase, or to effect the purchase of, any Bonds. Section 15. Notices. The Remarketing Agent and the Authority hereby designate as their respective notice addresses the addresses shown for each of them in Section 13.06 of the Indenture. Unless otherwise provided herein, all notices, requests, certificates or other communications hereunder shall be sufficiently given if the same shall be -6- duly delivered or mailed, by first class mail, addressed to the addresses referred to above. The Remarketing Agent and the Authority may designate any further or different address to which subsequent notices, certificates, requests or other communications shall be sent. Section 16. Amendment. This Remarketing Agreement may not be waived, altered, modified, amended or supplemented in any manner except by an instrument in writing signed by the Authority and the Remarketing Agent. The Authority shall promptly give written notice to the Trustee after an amendment is made to this Remarketing Agreement. Section 17. Termination. This Remarketing Agreement will terminate upon the effective resignation or removal of the Remarketing Agent as Remarketing Agent or upon conversion of the Bonds to bear interest at a Fixed Interest Rate, each in accordance with the Indenture. Following termination, each party will pay the other any amounts owing at the time of termination. Section 18. Governing Law. This Remarketing Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. Section 19. Successors and Assigns. This Remarketing Agreement will inure to the benefit of and be binding 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. Section 20. Survival of Representations and Warranties. All of the representations, warranties and covenants made in this Remarketing Agreement shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any party hereto, (ii) delivery of and any payment for any Bonds hereunder, or (iii) termination or cancellation of this Remarketing Agreement. Section 21. Severability. If any provision of this Remarketing Agreement shall be held or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as applied in any particular case in any jurisdiction or jurisdictions, or in all jurisdictions because it conflicts with any provisions of any constitution, statute, rule or public policy, or any other reason, such circumstances shall not have the effect of rendering the provisions in question invalid, inoperative or unenforceable in any other case or circumstance, or of rendering any other provision of this Remarketing Agreement invalid, inoperative or unenforceable to any extent whatsoever. Section 22. Section Headings. Section headings have been inserted in this Remarketing Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Remarketing Agreement and will not be used in the interpretation of any provisions of this Remarketing Agreement. Section 23. Counterparts. This Remarketing Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. -7- IN WITNESS WHEREOF, the parties hereto have caused this Remarketing Agreement to be duly executed as of the day and year first above written. AVON URBAN RENEWAL AUTHORITY By: Chairman [SEAL] ATTEST: By:_ Executive Director/Secretary STIFEL, NICOLAUS & COMPANY, 40 INCORPORATED, as Remarketing Agent By: Managing Director • -8- 765428.3