EXHIBIT 10.4
------------
11
$3,000,000
MISSISSIPPI BUSINESS FINANCE CORPORATION
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1998
(SIMPSON DURA-VENT COMPANY, INC. PROJECT)
BOND PURCHASE AGREEMENT
Among
UNION BANK OF CALIFORNIA, N.A.
MISSISSIPPI BUSINESS FINANCE CORPORATION
And
SIMPSON DURA-VENT COMPANY, INC.
Dated as of May 1, 1998
TABLE OF CONTENTS
1. Background 1
2. Joint Representation of the Issuer and the Company 3
3. Representations of the Issuer 3
4. Representations of the Company 4
5. Covenants of the Company 5
6. Purchase, Sale and Delivery of the Bonds 7
7. Documents 8
8. Conditions to Obligations of the Purchaser 9
9. Termination 12
10. Expenses 13
11. Condition of the Issuer's Obligations 13
12. Notices 13
13. Successors 14
14. Survival of Certain Representations and Warranties 15
15. Governing Law 15
16. Miscellaneous 15
17. Counterparts 15
18. Effective Date 16
19. Defined Terms 16
May 1, 1998
Mississippi Business Finance Corporation
Jackson, Mississippi
Simpson Dura-Vent Company, Inc.
Pleasanton, California
Ladies and Gentlemen:
Union Bank of California, N.A., a national banking association
organized under the laws of the United States of America (the
"Purchaser"), offers to enter into this Bond Purchase Agreement (this
"Agreement") with the Mississippi Business Finance Corporation, a public
corporation organized and existing under the laws of the State of
Mississippi (the "State") the "Issuer") and Simpson Dura-Vent Company,
Inc., a corporation organized, validly existing under the laws of the
State of California and in good standing under the laws of the State of
Mississippi (the "Company"), which, upon your acceptance will be binding
upon the Issuer, the Company and the Purchaser.
1. BACKGROUND
(a) The Issuer will issue and sell its Taxable Industrial
Development Revenue Bonds, Series 1998 (Simpson Dura-Vent Company, Inc.
Project) in the aggregate principal amount of $3,000,000 (the "Bonds") to
provide for the permanent financing for a portion of the cost of the
Project (as defined in the Loan Agreement, as hereinafter defined) to be
located in the State and to be owned by the Company. The principal
proceeds of the Bonds will be funded upon execution and delivery of the
Bond and the Note as described in the Indenture and the Loan Agreement (as
hereinafter defined). The Issuer and the Company will enter into a Loan
Agreement (the "Loan Agreement") dated as of May 1, 1998 providing, among
other things, for payments at times and in amounts sufficient to pay when
due the principal of, premium, if any, and interest on the Bonds.
(b) The Bonds will be issued pursuant to Title 57, Chapter 10,
Articles 7 and 11 of the Mississippi Code of 1972, as amended and
supplemented (the "Act"), resolutions of the Issuer dated October 15, 1997
and May 13, 1998 (collectively the "Resolution") and a trust indenture
(the "Indenture") dated as of May 1, 1998 between the Issuer and Union
Bank of California, N.A., as Trustee, a national banking association
organized and existing under the laws of the United States of America (the
"Trustee"). The Bonds are limited obligations of the Issuer, payable
solely from payments to be made by the Company pursuant to the Loan
Agreement, payments to be made by the Company pursuant to a promissory
note to the Issuer (the "Note") and payments made by Simpson Manufacturing
Company, Inc. and Simpson Strong Tie Company, Inc. pursuant to the
Guaranty.. Payment of the Bonds is secured by the lien of the Indenture
on the trust estate created thereunder which consists generally of money
deposited in the funds and accounts established under the Indenture and
income from the investment of such money as required by the Indenture, the
Loan Agreement and the Note.
(c) The Bonds will contain the terms and provisions as
described in the Indenture and will bear interest at the rates described
in the Indenture.
(d) The terms and provisions of the Bonds have been approved by
the Company which enters into this Agreement in order to induce the
Purchaser to purchase the Bonds and advances thereupon at the price set
forth in the Indenture.
(e) No preliminary official statement, final official statement
or other disclosure document will be distributed in connection with the
issuance and sale of the Bonds.
(f) It is intended that interest on the Bonds will be included
in the gross income of the holder thereof for federal income tax purposes.
(g) The Purchaser is purchasing the Bonds for its own account
and will, on the Closing Date (as hereinafter defined), execute a document
satisfactory to the Issuer agreeing not to sell or otherwise transfer or
dispose of the Bonds without complying with applicable disclosure and
registration requirements of federal and state securities laws.
(h) This Agreement, together with the Loan Agreement, the Note,
the Indenture and the Bond shall hereinafter sometimes be referred to as
the Loan Documents.
2. JOINT REPRESENTATION OF THE ISSUER AND THE COMPANY
The Issuer and the Company represent that the Project will constitute
an "economic development project" within the meaning of the Act.
3. REPRESENTATIONS OF THE ISSUER
The Issuer makes the following representations, all of which will
survive the purchase and offering of the Bonds.
(a) The Issuer is a public corporation organized and existing
under the laws of the State.
(b) The Issuer is authorized by the provisions of the Act to
issue the Bonds, to loan the proceeds of the Bonds to the Company pursuant
to the Loan Agreement to be used for the permanent financing of the
Project, to pledge and assign the Loan Agreement and the Note, and the
payments to be received by the Issuer pursuant thereto and the funds
established pursuant to the Indenture and investment earnings and amounts
therein as security for the payment of the principal of, premium, if any,
and interest on the Bonds and to assign its interest in the Loan Agreement
and the Note to the Trustee, all pursuant to the Indenture.
(c) The Issuer has complied with all provisions of the
Constitution and the laws of the State pertaining to the issuance and sale
of the Bonds, including the Act, and has full power and authority to
authorize and thereafter consummate all transactions contemplated by the
Loan Documents and any and all other agreements relating thereto.
(d) The Issuer has duly adopted the Resolution and has duly
authorized the execution and delivery of the Loan Documents and the
issuance and sale of the Bonds, and taken all actions and obtained all
approvals necessary and appropriate to carry out the same.
(e) The Issuer has duly authorized all necessary actions to be
taken by the Issuer (i) for the issuance and sale of the Bonds upon the
terms set forth herein and in the Indenture, (ii) for the execution,
delivery, receipt and due performance of the Loan Documents, any and all
other agreements and documents as may be required to be executed,
delivered and received by the Issuer in order to carry out, give effect to
and consummate the transactions contemplated hereby and by the issuance
and sale of the Bonds, and (iii) for the carrying out, giving effect to,
and consummation of the transactions contemplated hereby, by the Indenture
and by the issuance and sale of the Bonds. Executed counterparts of the
Loan Documents will be delivered to the Purchaser by the Issuer on the
Closing Date (as hereinafter defined).
(f) To the best of the Issuer's knowledge, there is no action,
suit, proceeding, inquiry, investigation at law or in equity or before or
by any court, public board or body pending or threatened against or
affecting the Issuer (or any basis therefor) wherein an unfavorable
decision, ruling or finding would adversely affect the transactions
contemplated hereby or the issuance and sale of the Bonds or the validity
of the Bonds, the Loan Documents or any agreement or instrument to which
the Issuer is or is expected to be a party and which is used or
contemplated for use in the consummation of the transactions contemplated
hereby.
(g) The execution and delivery by the Issuer of the Loan
Documents and other agreements contemplated hereby or by the issuance and
sale of the Bonds and compliance with the provisions thereof will not
conflict with or constitute, on the part of the Issuer, a breach of or a
default under any existing law, court or administrative regulation, decree
or order or any agreement, indenture, mortgage, lease or other instrument
to which the Issuer is subject or by which the Issuer is or may be bound.
(h) Any certificate signed by any of the Issuer's authorized
officers and delivered to the Purchaser shall be deemed a representation
and warranty by the Issuer to the Purchaser as to the statements made
therein.
(i) When an advance in respect of the Bonds is paid for by the
Purchaser at the direction of the Company in accordance with the terms of
this Agreement, the Bonds, including each such advance, will have been
duly authorized, executed and issued and will constitute legal, valid and
binding limited obligations of the Issuer enforceable in accordance with
their terms and entitled to the benefits of the Indenture.
4. REPRESENTATIONS OF THE COMPANY
The Company makes the following representations, all of which will
survive the purchase and offering of the Bonds:
(a) The Company is a corporation duly organized, validly
existing under the laws of the State of California and in good standing
under the laws of the State of Mississippi.
(b) The Company has full corporate power and authority to
authorize and thereafter consummate all transactions contemplated by this
Agreement, the Loan Documents and any and all other agreements relating
thereto.
(c) The Company has duly authorized all necessary actions to be
taken by the Company (i) for the execution, delivery, receipt and due
performance of the Loan Documents, (ii) for the consummation of the
transactions contemplated by the sale of the Bonds, the Loan Documents,
and (iii) for the Loan Documents to constitute valid and binding
obligations of the Company enforceable in accordance with their respective
terms, as each may apply to the Company except to the extent that the
enforceability thereof may be limited (A) by bankruptcy, reorganization or
similar laws limiting the enforceability of creditors' rights generally or
(B) by the availability of any discretionary equitable remedies.
(d) The execution and delivery by the Company of the Loan
Documents and the other documents contemplated hereby and by the issuance
and sale of the Bonds and compliance with the provisions thereof will not
conflict with or constitute on the Company's part a breach of or default
under any existing law, court or administrative regulation, decree or
order or any agreement, indenture, mortgage, lease or other instrument to
which the Company is subject or by which the Company is or may be bound.
(e) Any certificate signed by any of the Company's authorized
officers and delivered to the Purchaser shall be deemed a representation
and warranty by the Company to the Purchaser as to the statements made
therein.
(f) The Company has obtained or will obtain as and when
required by applicable law all approvals required in connection with the
execution and delivery of and performance by the Company of its
obligations under the Loan Documents.
(g) To the best of the Company's knowledge, there is no action,
suit, proceeding, inquiry, investigation at law or in equity or before or
by any court, public board or body pending or threatened against or
affecting the Company (or any basis therefor) wherein an unfavorable
decision, ruling or finding would adversely affect the transactions
contemplated hereby or the issuance and sale of the Bonds or the validity
of the Bonds, the Loan Documents or any agreement or instrument to which
the Company is or is expected to be a party and which is used or
contemplated for use in the consummation of the transactions contemplated
hereby.
(h) The Company will have obtained all licenses, permits,
franchises or other governmental authorizations necessary for the
acquisition, construction, installation, equipping and permanent
financing, from time to time, of the Project and the use of the Project.
5. COVENANTS OF THE COMPANY
The Company covenants and agrees to the following covenants, all of
which will survive the purchase and offering of the Bonds and any
investigations made by or on behalf of the Purchaser:
(a) The Company agrees to indemnify and hold harmless the
Issuer, its counsel, Bond Counsel, the Purchaser, the Trustee, any
officer, agent or employee of the Issuer and each person, if any, who
controls any of the foregoing within the meaning of Section 15 of the
Securities Act of 1933, as amended, or Section 20 of the Securities
Exchange Act of 1934, as amended (collectively referred to herein as the
"Indemnified Parties"), against any and all losses, claims, damages,
liabilities or expenses whatsoever arising out of or resulting from or in
any way related to the issuance and sale of the Bonds, any breach by the
Company of any of, or the inaccuracy of any of, its representations,
warranties and covenants set forth in this Agreement and the permanent
financing of the Project and the acquisition, installation, equipping and
the use of the Project; provided, however, that the Company shall not
indemnify and hold harmless any Indemnified Party from damages that result
from negligence or misconduct on the part of the Indemnified Party seeking
such indemnity.
In case any action shall be brought against one or more of the
Indemnified Parties based upon the information described in the preceding
paragraph and in respect of which indemnity may be sought against the
Company, the Indemnified Parties shall promptly notify the Company in
writing and the Company shall promptly assume the defense thereof,
including the employment of counsel reasonably acceptable to the
Indemnified Parties, the payment of all expenses, and the right to
negotiate and consent to settlement. Any one or more of the Indemnified
Parties has the right, at its own expense, to employ separate counsel in
any such action and to participate in the defense thereof. The Company
shall not be liable for any settlement of any such action effected without
its consent, but if settled with the consent of the Company, or if there
be a final judgment for the plaintiff in any such action with or without
its consent, the Company agrees to indemnify and hold harmless the
Indemnified Parties from and against any loss or liability by reason of
such settlement or judgment.
(b) The Company will not take or omit to take, as may be
applicable, any action which would, in any way, cause the proceeds of the
Bonds to be applied in a manner contrary to the requirements of the
Indenture and the Loan Agreement.
(c) Whether or not the sale of the Bonds by the Issuer to the
Purchaser is consummated, the Company agrees that the or Issuer or the
Purchaser shall have no obligation to pay any costs or expenses incident
to the performance of the obligations of the Issuer or the Purchaser under
this Agreement. All costs and expenses to effect the preparation,
issuance, sale and delivery of the Bonds and the Loan Documents and the
fees and expenses of the Issuer, its Agents, and of Bond Counsel, and of
the Purchaser and its counsel, shall be paid by the Company.
(d) The Company agrees to provide the Purchaser:
i. Unaudited financial statements of Company and Simpson
Strong Tie Company, Inc. ("SSTC"), prepared by the
Company and SSTC respectively for each fiscal year of
Company and SSTC, within 90 days after the close of
each such fiscal year.
ii. Unaudited financial statements (including a balance
sheet and profit and loss statement) of Company and
SSTC for each quarter of each fiscal year of Company
and SSTC, within 60 days after the close of each such
period.
iii. A compliance certificate for (and executed by an
authorized representative of) the Company and the
Guarantors, concurrently with and dated as of the date
of delivery of each of the financial statements as
required under the Guaranties or in paragraphs (i) and
(ii) above, containing (a) a certification that the
financial statements of even date fairly present
Company's and Guarantors' consolidated financial
condition as of the date thereof and that the Company
and Guarantors are not in default under the terms of
this Agreement or any of the other Loan Documents or
the Guaranties, and (b) computations and conclusions,
in such detail as the Purchaser may request, with
respect to compliance with this Agreement, and the
other Loan Documents or the Guaranties, including
computations of all quantitative covenants.
iv. Such other additional information, reports and
statements respecting the business operations and
financial condition of Company and Guarantors, from
time to time, as the Purchaser may reasonably request.
6. PURCHASE, SALE AND DELIVERY OF THE BONDS
(a) On the basis of the representations, warranties and
covenants contained herein, and in the Loan Documents and other agreements
referred to herein, and subject to the terms and conditions herein and
therein set forth, on the Closing Date the Purchaser agrees to purchase
from the Issuer and the Issuer agrees to sell to the Purchaser the Bonds
in an agreed upon principal amount for a purchase price of one hundred
percent (100%) of the principal amount of the Bonds so issued as provided
for hereunder and in the Indenture.
(b) The Issuer will deliver the Bonds to or for the account of
the Purchaser against payment of the purchase price therefor on the
Closing Date in the principal amount of $3,000,000. The Bonds will be
dated the date of issuance and delivery thereof, will be delivered in the
form of one (1) fully registered Bond, in the denomination of $3,000,000,
and will be registered in the name of the Purchaser. The Bonds may be in
printed, engraved, typewritten or photocopied form and each such form
shall constitute "definitive form."
(c) Subject to the terms and conditions contained herein and in
reliance on the representations, warranties and covenants herein set
forth, the Purchaser agrees to purchase from the Issuer the entire
aggregate principal amount of the Bonds issued under the Indenture and the
Issuer hereby agrees to sell to the Purchaser the entire aggregate
principal amount of the Bonds that are to be issued under the Indenture at
a price of 100% of the principal amount of the Bonds. The sale and
purchase of the Bonds will be accomplished in one payment as set forth in
the Indenture.
The outstanding principal amount of the Bond shall at all times
be determined by the records maintained by the Trustee and the Purchaser.
All Bonds issued by the Issuer are to be sold to the Purchaser
under and pursuant to this Agreement and shall not be sold to any other
purchaser, other than to the Guarantors, insurance companies or a
financial or banking institution or pursuant to any other agreement
without an agreement in writing signed by the Issuer, the Trustee, the
Purchaser and such other purchaser.
(d) The Purchaser agrees that it is purchasing the Bonds for
its own account and not with a view towards any resale or public
distribution thereof.
(e) The Bonds shall bear interest at the rates, mature on the
date or dates, be subject to optional and mandatory redemption prior to
maturity, and have such other terms as described in the Indenture.
7. DOCUMENTS
On or prior to the Closing Date, the Company and the Purchaser shall
have received a copy of each of the following documents in form and
substance satisfactory to the Purchaser in its sole discretion duly
executed by all parties thereto as certified to the satisfaction of the
Purchaser:
(a) the Resolution;
(b) the Indenture;
(c) the Loan Agreement;
(d) the Note;
(e) the Assignment of the Loan Agreement;
(f) the Assignment of the Note;
(g) the written consent of Wells Fargo Bank, N.A. to the
execution, delivery and performance of (1) the Loan
Documents and (2) the Guaranties by the Guarantors;
(h) evidence of insurance as required by Section 4.12 of the
Loan Agreement; and
(i) the Guaranties.
The Issuer and the Company shall immediately upon their execution provide
the Purchaser with any amendments to the aforementioned documents.
8. CONDITIONS TO OBLIGATIONS OF THE PURCHASER
The obligation of the Purchaser to purchase and pay for the Bonds and
the obligation of the Issuer to sell the Bonds to the Purchaser shall be
subject to the following conditions precedent:
(a) The representations and warranties of the Company herein
and the representations and warranties made in each of the Loan Documents
and the Guaranties by the respective parties thereto shall be true,
correct and complete on the date hereof and on the Closing Date, and each
such party to the Loan Documents, including the Company, shall deliver a
certificate to such effect on the Closing Date. The Issuer and the
Company shall have performed all of their obligations hereunder, and the
statements made on behalf of the Issuer and the Company hereunder shall be
true and correct on the date hereof and on the Closing Date, and the
Issuer and the Company shall deliver certificates to such effect on the
Closing Date.
(b) Except as may have been agreed to by the Purchaser, as of
the Closing Date, each of the Loan Documents, the Resolution and all other
official action of the Issuer relating thereto shall be in full force and
effect and shall not have been amended, modified or supplemented without
the written approval of the Purchaser.
(c) The Issuer shall have received the approving opinion of
Bond Counsel in form and substance reasonably acceptable to the Purchaser,
and the Purchaser shall have received a letter from Bond Counsel dated the
Closing Date and addressed to the Purchaser, to the effect that the
Purchaser may rely upon such firm's opinion as if it were addressed to the
Purchaser.
(d) The Purchaser shall have received the opinion of counsel to
the Issuer, dated the Closing Date and addressed to the Purchaser in form
and substance reasonably acceptable to the Purchaser.
(e) No default or event of default (as defined in any of the
Loan Documents or the Guaranties) shall have occurred and be continuing,
and no event shall have occurred and be continuing as of the Closing Date
which, with the lapse of time or the giving of notice or both, would
constitute such a default or event of default.
(f) (i) No material adverse change shall have occurred, nor
shall any development involving a prospective material and adverse change
in, or affecting the affairs, business, financial condition, result of
operations, prospects or properties (including the Project) of the Issuer,
the Company or the Guarantors have occurred, between the date hereof and
the Closing Date; and
(ii) The financial statements of the Company heretofore
delivered to the Purchaser have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout
the period involved and fairly present the Company's consolidated
financial condition as of the date or dates thereof, and there has been no
material adverse change in the Company's financial condition or operations
since December 31, 1997.
(g) On or prior to the Closing Date, all actions required to be
taken as of the Closing Date in connection with the Bonds and the Loan
Documents by the Issuer, the Company and the Guarantors shall have been
taken, and the Issuer, the Company and the Guarantors shall each have
performed and complied with all agreements, covenants and conditions
required to be performed or complied with it by this Agreement, the Bonds
and the Loan Documents, and each party shall deliver a certificate to such
effect insofar as the foregoing actions, agreements, covenants and
conditions apply to each such party, and each of such agreements shall be
in full force and effect and shall not have been amended, modified or
supplemented, except as has been agreed to in writing by the Purchaser.
(h) Each of the Loan Documents and the Guaranties shall have
been executed and delivered by each of the respective parties thereto, all
such documents shall be in forms exhibited to the Purchaser on the date
hereof with only such changes as the Purchaser may approve in writing, and
each of the Loan Documents and the Guaranties shall be in full force and
effect.
(i) None of the events referred to in Section 9 of this
Agreement shall have occurred.
(j) The Purchaser shall have received a certificate, dated the
Closing Date and signed on behalf of the Issuer, to the effect that:
(i) the Issuer has not received notice of any pending, nor
to the Issuer's knowledge is there any threatened, action, suit,
proceeding, inquiry or investigation against the Issuer, at law or in
equity, by or before any court, public board or body, nor to the Issuer's
knowledge is there any basis therefor, affecting the existence of the
Issuer or the titles of its officials to their respective offices, or
seeking to prohibit, restrain or enjoin the sale, issuance or delivery of
the Bonds or the pledge of revenues or assets of the Issuer pledged or to
be pledged to pay the principal of and interest on the Bonds, or in any
way materially adversely affecting or questioning (A) the territorial
jurisdiction of the Issuer, (B) the use of the proceeds of the Bonds to
permanently finance the Project, (C) the validity or enforceability of the
Bonds, any proceedings of the Issuer taken with respect to the Bonds, or
any of the Loan Documents to which it is a party, (D) the execution and
delivery of this Agreement or the Bonds, or (E) the power of the Issuer to
carry out the transactions contemplated by this Agreement, the Bonds, the
Indenture or any of the Loan Documents which the Issuer is a party; and
(ii) the Issuer has complied with all the covenants and
satisfied all of the conditions on its part to be performed or satisfied
at or prior to the Closing Date, and the representations and warranties of
the Issuer contained herein and in each of the Loan Documents to which it
is a party are true and correct as of the Closing Date.
(k) The Purchaser shall have received an opinion of counsel to
the Company and the Guarantors, dated the Closing Date and addressed to
the Purchaser in form and substance reasonably acceptable to the
Purchaser.
(l) The Purchaser shall have received certificates dated the
Closing Date from the Company and the Guarantors to the effect that the
Company and the Guarantors have complied with all of the covenants and
satisfied all of the conditions to be performed or satisfied by it on or
prior to the Closing Date, and the representations and warranties of the
Company and the Guarantors contained in this Agreement and in each of the
Loan Documents to which it is a party are true, correct and complete as of
the Closing Date, and it has full legal right, power and authority to
enter into and carry out the transactions contemplated by the Loan
Documents and the Guaranties.
(m) The Purchaser shall have received a certificate, dated the
Closing Date and signed by an authorized officer of the Trustee, to the
effect that (i) he or she is an authorized officer of the Trustee, (ii)
the Indenture has been duly executed and delivered by the Trustee, (iii)
the Trustee has all necessary corporate and trust powers required to carry
out the trust created by the Indenture, (iv) to the best of his or her
knowledge, the acceptance by the Trustee of the duties and obligations of
the Trustee under the Indenture and compliance with the provisions thereof
will not conflict with or constitute a breach of or default under any law,
administrative regulation, consent decree or any agreement or other
instrument to which the Trustee is subject or by which the Trustee is
bound, and (v) the Trustee has duly authenticated the Bonds, and the
person signing the certificate of authentication on each Bond has been
duly authorized to do so.
(n) Evidence, reasonably satisfactory in form and substance to
the Purchaser and Bond Counsel, of a satisfactory and favorable conclusion
to a bond validation proceeding under the laws of the State with respect
to the Bonds shall have been received.
(o) Such additional certificates, opinions and other documents
as the Purchaser or Bond Counsel may reasonably request to evidence
performance of or compliance with the provisions of this Agreement and the
transactions contemplated hereby and by the issuance and sale of the
Bonds, all such certificates and other documents to be reasonably
satisfactory in form and substance to the Purchaser, shall have been
received.
(p) If any conditions to the obligations of the Purchaser or
the Issuer contained in this Agreement are not satisfied and the
satisfaction of such conditions shall not be waived by the Purchaser,
then, at the option of the Purchaser (i) the Closing Date shall be
postponed for such period as may be deemed necessary for such conditions
to be satisfied or (ii) without limiting the generality of Section 14 of
this Agreement, the obligations of the Purchaser and the Issuer under this
Agreement shall terminate, neither the Purchaser nor the Issuer shall have
any further obligations or liabilities hereunder, and the Company shall
have no further obligations or liabilities hereunder other than its
obligations under Section 5 hereof.
(q) All of the legal opinions, certificates, proceedings,
instruments and other documents mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof
if, but only if, they are in form and substance reasonably satisfactory to
the Purchaser and the Issuer.
(r) As of the Closing Date, no event of default (as defined in
the Loan Documents) shall have occurred and be continuing, nor shall any
event have occurred and be continuing as of the Closing Date which, with
the lapse of time, would constitute such a default.
(s) The Purchaser shall have received, in immediately available
funds, payment of the $10,000 fee from the Company payable pursuant to the
commitment letter between the Purchaser and the Company.
9. TERMINATION
The Purchaser may terminate its obligations hereunder by written
notice to the Issuer if, at any time subsequent to the date hereof and on
or prior to the Closing Date:
(a) There shall have occurred any material change in the
business or affairs of the Issuer, the Company or either of the
Guarantors, or any material change in the Project which materially
adversely affects the financial condition, business, properties or
prospects of the Company or the Gurantors.
(b) Any condition to the Purchaser's obligations hereunder is
not satisfied because of any refusal, inability or failure on the part of
the Company or the Issuer to comply with any of the terms or to fulfill
any of the conditions provided for or contemplated by this Agreement, or
if for any reason the Company, the Trustee, the Issuer or either of the
Guarantors shall be unable to perform all of their obligations or satisfy
conditions, respectively, provided for or contemplated in this Agreement,
the Loan Documents or the Guaranties.
10. EXPENSES
The Company shall cause to be paid out of its own funds, or the
proceeds of the Bonds, the costs of issuing the Bonds, including, but not
limited to, the fees and expenses described in Section 5 of this
Agreement, whether or not the sale of the Bonds by the Issuer to the
Purchaser is consummated.
11. CONDITION OF THE ISSUER'S OBLIGATIONS
The Issuer's obligations hereunder are subject to the Purchaser's
performance of its obligations hereunder.
12. NOTICES
Any notice or other communication to be given under this Agreement
may be given by delivering the same in writing and shall be deemed given,
unless otherwise required herein, when received by registered or certified
mail, return receipt requested, postage prepaid; or when received by
overnight delivery; or when personally delivered; addressed as follows:
If to the Issuer:
Mississippi Business Finance Corporation
1306 Walter Sillers Building
550 High Street
Jackson, Mississippi 39201
Post Office Box 849
Jackson, Mississippi 39205
Attention: Executive Director
Telephone Number: (601) 359-3047
Facsimile Number: (601) 359-2832
If to the Purchaser:
Union Bank of California, N.A.
1800 Harrison Street, Suite 1400
Oakland, California 94604
Attention: Joellen Ademski
Telephone Number: (510) 271-1747
Facsimile Number: (510) 271-1764
With a copy to:
Union Bank of California, N.A.
350 California Street - 10th Floor
San Francisco, California 94120
Attention: Lebbeus S. Case, Jr.
Telephone Number: (415) 705-7308
Facsimile Number: (415) 705-7111
If to the Company:
Simpson Dura-Vent Company, Inc.
4637 Chabot Road, Suite 200
Pleasanton, California 94588
Attention: Steve Lamson, Chief Financial Officer
Telephone Number: (510) 460-9912
Facsimile Number: (510) 847-9114
If to the Trustee:
Union Bank of California, N.A.
4750 Sansome Street, 12th Floor
San Francisco, California 94110
Attention: Corporate Trust Department
Telephone Number: (415) 296-6754
Facsimile Number: (415) 296-6757
13. SUCCESSORS
This Agreement is made solely for the benefit of the Issuer, the
Purchaser and the Company (including their successor or assigns) and no
other person shall acquire or have any right hereunder by virtue hereof
(other than pursuant to Section 5 hereof).
14. SURVIVAL OF CERTAIN REPRESENTATIONS AND WARRANTIES
All agreements, covenants, representations and warranties and all
other statements of the Issuer and the Company set forth in or made
pursuant to this Agreement shall remain in full force and effect and shall
survive the Closing Date and the delivery of the Bonds.
15. GOVERNING LAW
This Agreement shall be governed by the laws of the State.
16. MISCELLANEOUS
This Agreement constitutes the only agreement among the parties
hereto relating to the subject matter hereof, and it supersedes and
cancels any and all previous contracts, agreements or understandings with
respect thereto. This Agreement may not be amended or modified except in
writing executed by all parties hereto. Capitalized terms not otherwise
defined herein shall have the meaning assigned to them in the Indenture
and the Loan Agreement.
17. COUNTERPARTS
This Agreement may be executed in several counterparts, each of which
shall be an original and all of which shall constitute one and the same
instrument.
18. EFFECTIVE DATE
This Bond Purchase Agreement shall be effective as of May 1, 1998,
although executed on the respective dates set forth below.
19. DEFINED TERMS
The terms defined herein shall have the meanings set forth in the
Loan Agreement and the Indenture.
Very truly yours,
UNION BANK OF CALIFORNIA, N.A.
By:
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Title:
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Date:
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MISSISSIPPI BUSINESS FINANCE CORPORATION
By:
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Executive Director
Accepted on June 30, 1998
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SIMPSON DURA-VENT COMPANY, INC.
By:
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Title:
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Accepted on June 30, 1998