THIS BOND PURCHASE
AGREEMENT, dated as of September 1, 2002, by and among THE
INDUSTRIAL DEVELOPMENT AUTHORITY OF ST. CHARLES COUNTY, MISSOURI, a
public corporation organized under the laws of the State of
Missouri (the “Issuer”), UNION PLANTERS BANK, N.A., St.
Louis, Missouri, a national banking association (the
“Purchaser”) and SYNERGETICS DEVELOPMENT COMPANY,
L.L.C., a limited liability company organized under the laws of the
State of Missouri (the “Obligor”).
The Issuer
covenants that:
SECTION
1.1. Authority. To its knowledge, the covenants of the
Issuer contained in the Loan Agreement (the
“Agreement”) dated as of even date herewith between the
Issuer and the Obligor are true and correct. The execution and
delivery of this Bond Purchase Agreement, the Indenture of Trust,
dated as of even date herewith (“Indenture”), by and
between the Issuer and UMB Bank, N.A., as Trustee
(“Trustee”), the aggregate principal amount of
$2,645,000 Private Activity Revenue Bonds, Series 2002
(Synergetics Development Company Project) issued pursuant to the
Indenture (the “Bonds”), the Assignment, dated as of
even date herewith, by and between the Issuer and the Trustee (the
“Assignment”), the Tax Compliance Agreement dated as of
even date herewith among the Issuer, the Obligor and the Trustee
(the “Tax Compliance Agreement”) and the Agreement and
the acceptance of the Future Advance Deed of Trust and the Security
Agreement, dated as of even date herewith, executed by the Obligor
as Grantor to the mortgage trustee named therein for the benefit of
the Issuer (the “Deed of Trust”), the Assignment of
Leases (the “Assignment of Leases”) executed by the
Obligor, the Guaranty Agreement, dated as of even date herewith,
executed by William L. Bates, Gregg D. Scheller, Kurt W. Gampp and
Synergetics, Inc. (collectively, the “Guarantor”) for
the benefit of the Issuer (the “Guaranty”), the
Security Agreement (Equipment) (the “Security
Agreement”) executed by Synergetics, Inc. (the
“Security Agreement”), the Guaranty of Unassigned
Issuer’s Rights, dated as of even date herewith executed by
the Guarantor and the Obligor for the benefit of the Issuer (the
“Guaranty of Unassigned Issuer’s Rights” and
hereinafter, together with the Deed of Trust, the Assignment of
Leases, the Guaranty and the Security Agreement, the
“Collateral Documents”) are within its authority and
have been duly authorized by proper proceedings and, to its
knowledge, will not contravene its articles of incorporation or
by-laws or any judgment, action, decree, agreement or instrument to
which it is a party. Execution of the Indenture, the Bonds, the
Agreement, the Assignment. the Tax Compliance Agreement and this
Bond Purchase Agreement has been authorized by the
Issuer.
SECTION
1.2. Use of Proceeds. The proceeds of the sale of the Bonds
will be deposited in the Project Fund created by the Indenture (the
“Project Fund”) and used as provided in the Agreement
and the Indenture. The proceeds of the sale of the Bonds to be
issued pursuant to the Indenture will not be used for any purpose
other than as provided in the Agreement and the
Indenture.
SECTION
1.3. Litigation and Governmental Authorization. To its
knowledge, there is no action or proceeding pending or threatened
by or against the Issuer before any court or administrative agency
which might adversely affect the authority or ability of the Issuer
to perform its obligations under the Agreement, the Indenture, the
Collateral Documents, this Bond Purchase Agreement or the Bonds, or
any related documents. To its knowledge, all authorizations,
consents and approvals of governmental bodies or agencies
applicable to Issuer required by the Act in connection with the
execution and delivery
by the Issuer
of the Agreement, the Indenture, the Collateral Documents, this
Bond Purchase Agreement and the Bonds or in connection with the
carrying out by Issuer of its obligations under the Agreement, the
Indenture, the Collateral Documents, this Bond Purchase Agreement
or the Bonds have been obtained.
OBLIGOR’S REPRESENTATIONS
AND WARRANTIES
The Obligor
represents and warrants that:
SECTION
2.1. Existence. The Obligor has been duly organized and is
validly existing as a limited liability company under the laws of
the State of Missouri with full power and authority to own its
properties and conduct its business as contemplated by the
Agreement and is conducting its business in substantial compliance
with all applicable and valid laws, rules and regulations of each
jurisdiction where it owns or leases substantial property or where
it transacts material intrastate business.
SECTION
2.2. Authority. The Obligor has full corporate power and
authority to execute and deliver the Agreement, the Promissory Note
dated as of even date herewith pursuant to the Agreement (the
“Note”), the Collateral Documents to which it is a
party and this Bond Purchase Agreement and to carry out the terms
thereof on its part to be performed. This Bond Purchase Agreement,
the Agreement, the Collateral Documents to which it is a party and
the Note, when executed and delivered by the Obligor, will be in
full force and effect and will be valid and binding obligations of
the Obligor, enforceable in accordance with their terms. The
consummation of the transactions herein described and the carrying
out of the terms thereof will not result in a violation of any
provision of, or a default under, the Articles of Association or
Operating Agreement of the Obligor or any indenture, mortgage, deed
of trust, indebtedness or agreement, judgment or decree to which
the Obligor is now a party or by which the Obligor or its property
is now bound.
SECTION
2.3. Authorization and Absence of Defaults. All consents,
approvals, authorizations and other requirements prescribed by any
law, governmental rule or regulation applicable to the Obligor
which must be obtained or satisfied by the Obligor in connection
with the transactions described herein have been obtained and
satisfied. The Obligor is not in violation of any provision of its
Articles of Association or Operating Agreement and the Obligor is
not in violation of any provision of, or in default under, any
indenture, mortgage, deed of trust, indebtedness, agreement,
instrument, judgment, decree, order, statute, rule or regulation to
which it is a party or by which it or its property is bound. There
is no action, suit, proceeding, inquiry or investigation at law or
in equity before or by any judicial or administrative court or
agency pending or, to the best knowledge of the Obligor,
threatened, against the Obligor, to which the Obligor is or may
become a party or to which any of its property is or may become
subject wherein an unfavorable decision, ruling or finding would
adversely affect the validity or enforceability of the Indenture,
the Agreement, the Note, the Collateral Documents to which it is a
party, this Bond Purchase Agreement or the transactions described
herein or therein, or the validity of the Bonds, or that should
have a material adverse effect on the financial condition or
operations of the Obligor. The obligations of the Obligor under the
Agreement, the Collateral Documents to which it is a party and the
Note are not subordinate to the rights of those claiming by, under
or through any indentures, loan agreements or other instruments to
which the Obligor is a party or by which the Obligor is or may be
bound pursuant to the terms thereof, except as identified in said
documents.
SECTION
2.4. Tax-Exempt Status. The information supplied by the
Obligor in writing with respect to the tax-free status of the Bonds
for use by Bond Counsel including all certificates executed in
connection with the issuance of the Bonds and so identified therein
is correct and complete in all material respects.
-2-
SECTION
3.1. Issuance of Bonds. The Purchaser agrees, upon the
terms and subject to the conditions contained in this Bond Purchase
Agreement, to purchase from the Issuer, and the Issuer agrees to
issue and sell to the Purchaser, the Bonds in the principal amount
of $2,645,000 at a purchase price equal to the principal amount of
the Bonds, which purchase price shall be paid in immediately
available funds. The purchase price shall be paid by the Purchaser
to the Trustee under the Indenture who shall credit such amount to
the Proj
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