EXHIBIT 10.36
BOND PURCHASE AGREEMENT
THIS BOND PURCHASE
AGREEMENT, dated as of December 1, 2004, 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”).
W I T N E S S E T H:
ARTICLE I
COVENANTS
The
Issuer covenants that:
SECTION 1.1. Authority. To its knowledge, the
covenants of the Issuer contained in the Loan Agreement dated as of
September 1, 2002 (the “Original Agreement”) as
supplemented by the First Supplemental Loan Agreement dated as of
even date herewith (the “First Supplemental Loan
Agreement” and, together with the Original Agreement, the
“Agreement”) 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 September 1,
2002 (the “Original Indenture”), as supplemented by the
First Supplemental Indenture of Trust dated as of even date
herewith (the “First Supplement” and, together with the
Original Indenture, the “Indenture”), by and between
the Issuer and UMB Bank, N.A., as Trustee (“Trustee”),
the aggregate principal amount of $2,330,000 Private Activity
Revenue Bonds, Series 2004 (Synergetics Development Company
Project) issued pursuant to the First Supplement (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 “Series 2004 Tax Compliance Agreement”) and
the Agreement and the acceptance of the First Supplemental 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
“First Supplemental Deed of Trust”), the First
Supplemental Assignment of Leases (the “First Supplemental
Assignment of Leases”) executed by the Obligor and the First
Supplemental Guaranty of Unassigned Issuer’s Rights, dated as
of even date herewith executed by the Corporate Guarantor 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 (as defined
in the Original Indenture) and the Security Agreement (as defined
in the Original Indenture), 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.
ARTICLE II
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 power
and authority to execute and deliver the Agreement, the Promissory
Note dated as of even date herewith pursuant to the First
Supplemental Loan Agreement (the “Series 2004
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
Series 2004 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
Organization 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 Organization 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
Series 2004 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
Series 2004 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-
ARTICLE III
THE BONDS
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 $2,330,000 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 Trus
|
