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Exhibit 10.4
BOND PLACEMENT AGREEMENT
Relating to
$6,000,000
Capital Industrial Development Corporation
Adjustable Rate Industrial
Revenue Bonds, Series 1998
(CCIR of Texas Corp. Project)
Dated as of
February 10, 1998
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BOND PLACEMENT AGREEMENT
This BOND PLACEMENT AGREEMENT is dated as of February 10, 1998, by and
among the CAPITAL INDUSTRIAL DEVELOPMENT CORPORATION, a nonstock, nonprofit
industrial development corporation existing under the laws of the State of Texas
(the "Issuer"), CCIR OF TEXAS CORP., a Texas corporation (the "Borrower"), and
BANC ONE CAPITAL CORPORATION, an Ohio corporation, as placement agent (the
"Agent").
1. Background.
(a) The Issuer proposes to issue $6,000,000 in aggregate
principal amount of Capital Industrial Development Corporation
Adjustable Rate Industrial Revenue Bonds, Series 1998 (CCIR of Texas
Corp. Project) (the "Bonds") and to loan the proceeds of the Bonds to
the Borrower to finance costs of acquiring, constructing and installing
the Borrower's manufacturing facility and related office facility,
including certain machinery and equipment (collectively, the
"Project"), to be located in ▇▇▇▇▇▇, ▇▇▇▇▇▇ County, Texas.
(b) The Bonds will mature on October 1, 2009, subject to prior
redemption pursuant to mandatory optional redemption requirements set
forth in the Letter of Credit Agreement (as hereinafter defined) and
other provisions described in the Offering Memorandum (as hereinafter
defined). The initial interest rate on the Bonds, effective from the
date of their initial delivery through February 18, 1998, shall be
3.50% per annum. The Bonds will be issued pursuant to a resolution (the
"Bond Resolution") adopted on January 27, 1998 by the Board of
Directors of the Issuer (the "Issuing Authority"), and will be secured
under a Trust Indenture (the "Indenture"), dated as of January 1, 1998,
between the Issuer and The Huntington National Bank, as trustee (the
"Trustee") for the holders of the Bonds. The Bonds will be payable from
the Revenues, as defined in the Indenture and as defined in a Loan
Agreement (the "Agreement"), dated as of January 1, 1998, between the
Issuer and the Borrower, pursuant to which the Issuer will loan the
proceeds of the Bonds to the Borrower for the purposes of financing
costs of the Project. The loan to the Borrower will be evidenced by the
execution and delivery by the Borrower to the Trustee of a promissory
note (the "Note") in the amount of $6,000,000. The proceeds of the
Bonds will be applied as provided in the Indenture and the Agreement.
The principal of and up to 45 days interest (at the maximum
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interest rate of 10%) on, and certain purchase price payments relating
to, the Bonds also will be secured by an irrevocable letter of credit
(the "Letter of Credit"), dated as of the date of initial delivery of
the Bonds, to be issued by Bank One, Arizona, NA, a national banking
association (the "Bank"), in favor of the Trustee. Pursuant to a Loan
Agreement between the Bank and Continental Circuits Corp., including
the Assumption Agreement (the "Letter of Credit Agreement") dated
February __, 1998 among the Bank and the Borrower, the Borrower will
agree to reimburse the Bank for amounts drawn on the Letter of Credit.
The Borrower's obligations under the Letter of Credit Agreement will be
secured by a security agreement and certain other collateral documents
(the "Bank Security Documents"). Pursuant to the Indenture, holders of
the Bonds initially will have certain options to tender Bonds for
purchase, which tendered Bonds will be purchased with funds from the
remarketing of the Bonds or drawings on the Letter of Credit, as
provided in the Indenture.
(c) It is intended that the Project and the Bonds will conform
with the provisions of Development Corporation Act of 1979, as amended,
Article 5190.6, Vernon's Texas Civil Statutes, as amended (the "Act"),
that the proceeds of the Bonds will be expended so that the interest on
the Bonds will not be includable in gross income for the purposes of
federal income taxation, and that the Bonds may be purchased by the
original purchasers without registration of any security under the
Securities Act of 1933, as amended (the "Securities Act"), or
qualification of any indenture under the Trust Indenture Act of 1939
(the "Trust Indenture Act").
(d) To induce the Issuer to enter into this Bond Placement
Agreement and to issue and deliver the Bonds, the Borrower has entered
into this Bond Placement Agreement.
(e) To provide for the remarketing of the Bonds pursuant to
the terms of the Indenture, the Borrower and the Agent, as Remarketing
Agent, will enter into a Remarketing Agreement dated as of January 1,
1998 (the "Remarketing Agreement").
(f) Pursuant to the Indenture and the Letter of
Representations as defined therein, the Bonds are being issued in
book-entry only form, and the parties acknowledge that,
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where appropriate, references herein to Bonds shall mean Beneficial
Ownership Interests, as defined in the Indenture.
2. Placement, Sale and Closing.
(a) Subject to the terms and conditions and in reliance upon
the representations, warranties and agreements set forth herein, the
Agent hereby agrees to use its best efforts to privately place on
behalf of the Issuer and the Borrower all (but not less than all) of
the Bonds as contemplated herein. The purchase price for the Bonds
shall be $6,000,000. As compensation for its services in placing the
Bonds, the Borrower shall pay a fee of 1% of such purchase price of the
Bonds to the Agent, such fee, together with the expenses described in
Section 10 hereof, to be payable by wire transfer in immediately
available funds on the Closing Date (as defined below).
(b) The Borrower has delivered or shall cause to be delivered
to the Agent copies of the Preliminary Offering Memorandum dated
February 3, 1998 relating to the Bonds (the "Preliminary Offering
Memorandum") and copies of the final Offering Memorandum relating to
the Bonds substantially in the form of the Preliminary Offering
Memorandum, with such changes as may be approved by the Agent (the
"Offering Memorandum") in quantities and at times sufficient to enable
the Agent to comply with the rules of the Municipal Securities
Rulemaking Board and the Securities and Exchange Commission. The
Borrower hereby approves the use and distribution by the Agent to
persons who may be interested in the purchase of the Bonds of the
Preliminary Offering Memorandum and the Offering Memorandum, and hereby
authorizes the Agent to use and distribute the Preliminary Offering
Memorandum and the Offering Memorandum, and copies of the Indenture and
all other documents, including without limitation the Letter of Credit
and related documents, to be executed in connection with the placement
and sale of the Bonds.
(c) Except as may be inconsistent with the provisions of this
Bond Placement Agreement, the Agent covenants and agrees to use its
best efforts to cause the purchase of all (but not less than all) of
the Bonds at the price or prices set forth in the Offering Memorandum
and to send to each original
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purchaser thereof a copy of the Offering Memorandum concurrently with
or prior to sending to such purchaser a final written confirmation of
the sale. Further, the Agent agrees not to use the Offering Memorandum
for the purpose of marketing the Bonds subsequent to receiving written
notice from the Issuer, the Bank or the Borrower which (i) states that
the Offering Memorandum contains an untrue statement of a material fact
or omits to state a material fact, and (ii) specifically identifies the
material fact or omission, provided that upon the amendment of the
Offering Memorandum to the satisfaction of the party delivering the
notice pursuant hereto, the Agent may, subject to the continuing
obligations contained herein, resume use of the amended Offering
Memorandum in marketing the Bonds. The Agent shall market the Bonds
only to "accredited investors", as defined in Rule 501(a) of Regulation
D promulgated under the Securities Act, without making a public
offering of the Bonds and at a minimum investment of $100,000.
(d) At 10:00 a.m. eastern standard time on February 11, 1998,
or at such earlier or later time or date as shall be agreed by the
Issuer, the Bank, the Borrower and the Agent (such time and date being
herein referred to as the "Closing Date"), the Issuer will issue and
deliver the Bonds in definitive form (being one Bond in the aggregate
principal amount of $6,000,000 registered in the name of CEDE & CO.),
duly executed by the Issuer and authenticated by the Trustee (or
Authenticating Agent if an entity separate from the Trustee is acting
as an authenticating agent) as provided for in the Indenture; and the
Agent shall arrange for the purchase price of the Bonds to be paid by
the original purchasers as set forth in paragraphs (a) and (c) of this
section by wire transfer in immediately available funds to an account
specified by the Trustee, for the account of the Issuer (such delivery
and payment being herein referred to as the "Closing"). The Bonds shall
be made available to the Trustee a reasonable time before the Closing
Date for purposes of inspection, packaging and authentication. The
Trustee shall deliver the Bonds to the Depository Trust Company in New
York, New York at least 24 hours in advance of the Closing Date,
provided that such Bonds shall not be released to the purchasers
thereof until the purchase price therefor has been paid. Concurrently
with and as a condition to the Closing,
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the Issuer will execute and deliver the Agreement and the Indenture at
the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
in Austin, Texas.
(e) Each of the parties hereto represents and agrees that it
has not knowingly participated in and will not knowingly participate
in, and is not aware of, any offering or sale of any tax-exempt
obligations (other than the Bonds) (i) which has been, is being or will
be conducted during the period commencing 15 days prior to the date
hereof and ending 15 days after the Closing Date, (ii) which has been,
is being or will be paid from the same source of funds as the Bonds,
determined without regard to guarantees from unrelated parties, and
(iii) which was, is being or will be made pursuant to the same plan of
financing. For purposes of the foregoing sentence, tax-exempt
obligations issued pursuant to the same plan of financing means
tax-exempt obligations (other than the Bonds) issued to finance a
single facility or related facilities. The Agent further represents
that it will not knowingly offer or place any of the Bonds hereunder to
or with any holder or group of holders that has purchased, is
purchasing or will purchase any obligations sold pursuant to an
offering which satisfies the conditions in clauses (i) and (ii) of the
first sentence of this paragraph.
(f) The parties hereto acknowledge that, in order to
facilitate the timely purchase of the Bonds at the Closing by the
original purchasers, the Agent may, but shall not be obligated to,
advance its own funds on behalf of such original purchasers.
3. Issuer's Representations and Warranties. The Issuer makes the
following representations and warranties:
(a) The Issuer is a nonstock, nonprofit industrial development
corporation existing under the laws of the State of Texas and has full
power and authority under the Act, among other things, (i) to issue
revenue bonds, such as the Bonds, and to make the proceeds of such
Bonds available to persons such as the Borrower for the purposes
described in the Indenture and the Agreement, payable from and secured
by a pledge of the Revenues, and (ii) to secure such Bonds in the
manner contemplated by the Indenture.
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(b) The Issuer has full legal right, power and authority (i)
to adopt the Bond Resolution and enter into this Bond Placement
Agreement, the Indenture, the Letter of Representations (as defined in
the Indenture) and the Agreement, (ii) to issue, sell and deliver the
Bonds as provided herein, and (iii) to carry out and consummate all
other transactions contemplated by each of the aforesaid documents, and
the Issuer has complied with all provisions of applicable law,
including the Act, in all matters relating to such transactions, except
that no representation is made by the Issuer as to compliance with
applicable federal or state securities laws.
(c) The Issuer has duly authorized (i) the issuance, sale and
delivery of the Bonds upon the terms set forth herein and in the
Indenture, (ii) the execution, delivery and due performance of this
Bond Placement Agreement, the Bonds, the Indenture and the Agreement,
and (iii) the taking of any and all such actions as may be required on
the part of the Issuer to carry out, give effect to and consummate the
transactions contemplated by such instruments.
(d) The Bond Resolution has been duly adopted by the Issuing
Authority and is in full force and effect. This Bond Placement
Agreement when executed and delivered constitutes, and the Indenture
and the Agreement, when executed and delivered, will constitute legal,
valid and binding obligations of the Issuer, enforceable in accordance
with their respective terms, except that enforceability may be limited
by laws relating to bankruptcy, reorganization or other similar laws
affecting the rights of creditors, by the exercise of judicial
discretion in accordance with general principles of equity, and by
matters of public policy.
(e) When duly authenticated by the Trustee, delivered to the
Depository (as defined in the Indenture) and paid for by the original
purchasers at the Closing in accordance with the provisions of this
Bond Placement Agreement, the Bonds will have been duly authorized,
executed, issued and delivered and will constitute legal, valid and
binding special, limited obligations of the Issuer in conformity with
the laws of the State of Texas, including the Act, will be entitled to
the benefit and security of the Agreement and the Indenture, and
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will be enforceable in accordance with their terms, except that
enforceability may be limited by laws relating to bankruptcy,
reorganization or other similar laws affecting the rights of creditors.
(f) Neither the adoption of the Bond Resolution, the execution
and delivery of this Bond Placement Agreement, the Bonds, the Indenture
or the Agreement, nor the consummation of the transactions contemplated
therein or the compliance with the provisions thereof, will conflict
with, or constitute on the part of the Issuer a violation of, or a
breach of or default under, any statute, indenture, mortgage,
commitment, note or other agreement or instrument to which the Issuer
is a party or by which it is bound, or under any provision of the Texas
Constitution or under any existing law, rule, regulation, resolution,
charter, judgment, order or decree to which the Issuer is subject,
except that no representation is made by the Issuer as to compliance
with applicable federal or state securities laws.
(g) Other than the Indenture and the Agreement, the Issuer has
not entered into any contract or arrangement of any kind which might
give rise to any lien or encumbrance on the Revenues.
(h) To the best of the Issuer's knowledge, there is no action,
suit, proceeding, inquiry or investigation, at law or in equity, before
or by any court, public board or body, pending or threatened against
the Issuer, which in any way questions the powers of the Issuer
referred to in paragraph (a) above, or the validity of any proceedings
taken by the Issuer in connection with the issuance of the Bonds, or
wherein an unfavorable decision, ruling or finding would materially
adversely affect the transactions contemplated by, or the validity or
enforceability of, the Bond Legislation, the Indenture, the Agreement,
the Bonds or this Bond Placement Agreement.
(i) The Issuer hereby ratifies and authorizes the distribution
and use of the Preliminary Offering Memorandum and the Offering
Memorandum. The information contained in the Preliminary Offering
Memorandum and the Offering Memorandum under the caption "THE ISSUER"
was or will be, as of their
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respective dates, and as of the Closing Date will be, true and correct
and complete in all material respects. Except for the information under
the caption "THE ISSUER", the Issuer has not provided any of the
information contained in the Preliminary Offering Memorandum or the
Offering Memorandum. The Issuer is not responsible for and does not
certify as to the accuracy or sufficiency of the disclosure made
therein or any of the information provided by the Borrower, the Bank,
the Agent or any other person.
(j) Any certificate relating to the Bonds signed by the Issuer
and delivered to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ("Bond Counsel"), the
original purchasers or the Agent at or before the Closing Date shall be
deemed a representation and warranty by the Issuer to Bond Counsel, the
original purchasers and the Agent, as to the truth of the statements
therein contained.
(k) The Issuer has not been notified of any listing or
proposed listing by the Internal Revenue Service to the effect that the
Issuer is a bond issuer whose arbitrage certifications may not be
relied on.
4. Borrower's Representations and Warranties. The Borrower makes the
following representations and warranties:
(a) The Borrower is a corporation, duly organized and validly
existing in good standing under the laws of the State of Texas, and has
full legal right, power and authority to own the Borrower's properties
and conduct the Borrower's business. The Borrower has full legal right,
power and authority to execute and deliver this Bond Placement
Agreement, the Note, the Bank Security Documents, the Agreement, the
Letter of Credit Agreement and the Remarketing Agreement, to authorize
the distribution and use of the Preliminary Offering Memorandum and the
Offering Memorandum, to provide for the acquisition, construction,
equipping, installation, operation and management of the Project, and
to take any and all such action as may be required on its part to carry
out, give effect to and consummate the transactions contemplated by
this Bond Placement Agreement, the Agreement, the Remarketing Agreement
and the Letter of Credit Agreement.
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(b) The Borrower has duly authorized, executed and delivered
this Bond Placement Agreement, and on the Closing Date will have duly
authorized, executed and delivered the Note, the Agreement, the Bank
Security Documents, the Remarketing Agreement and the Letter of Credit
Agreement, and has taken or will take all such action as may be
required on the part of the Borrower to carry out, give effect to and
consummate the transactions contemplated by each of such documents.
This Bond Placement Agreement constitutes, and the Note, the Bank
Security Documents, the Agreement, the Remarketing Agreement and the
Letter of Credit Agreement, when executed and delivered, will
constitute legal, valid and binding obligations of the Borrower,
enforceable in accordance with their respective terms, except that
enforceability may be limited by laws relating to bankruptcy,
reorganization or other similar laws affecting the rights of creditors
or by equitable principles which may affect the availability of
specific performance or other equitable remedies.
(c) Neither the execution and delivery of this Bond Placement
Agreement, the Note, the Agreement, the Bank Security Documents, the
Remarketing Agreement or the Letter of Credit Agreement, nor the
consummation of the transactions contemplated therein or the compliance
with the provisions thereof, will conflict with, or constitute on the
part of the Borrower a violation of, or a breach of or default under,
the Borrower's articles of incorporation or bylaws or any material
indenture, mortgage, commitment, note or other agreement or instrument
to which the Borrower is a party or by which the Borrower is bound, or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Borrower or any of its activities or
properties. All consents, approvals, authorizations and orders of
governmental or regulatory authorities which are required for the
Borrower's execution and delivery of, consummation of the transactions
contemplated by and compliance with the provisions of this Bond
Placement Agreement, the Note, the Bank Security Documents, the
Agreement, the Remarketing Agreement and the Letter of Credit Agreement
have been obtained.
(d) There is no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court,
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public board or body, pending or, to the best of the knowledge of the
Borrower, threatened, against the Borrower, or the actions taken or
contemplated to be taken by the Borrower, nor, to the best of the
knowledge of the Borrower, is there any basis therefor, which
reasonably would be expected to materially adversely affect the
business, financial condition or operations of the Borrower, or the
transactions contemplated by, or the validity or enforceability of,
this Bond Placement Agreement, the Note, the Bank Security Documents,
the Agreement, the Remarketing Agreement or the Letter of Credit
Agreement, or which would in any way jeopardize the tax-exempt status
of the interest on the Bonds.
(e) No event has occurred and no condition exists which, upon
issuance of the Bonds, would constitute (or with the giving of notice
or lapse of time, or both, would constitute) an Event of Default under
the Agreement or the Letter of Credit Agreement.
(f) The Borrower is not in violation of any provisions of, or
in default under, its articles of incorporation or bylaws or any
statute, indenture, mortgage, commitment, note or other agreement or
instrument to which it is a party or by which it is bound, or any
order, rule, regulation or decision of any court or governmental agency
or body having jurisdiction over it or any of its activities or
properties, which violation would materially and adversely affect its
business or financial condition.
(g) The Borrower hereby ratifies and authorizes the
distribution and use of the Preliminary Offering Memorandum and the
Offering Memorandum. The information contained in the Preliminary
Offering Memorandum and the Offering Memorandum (except for the
information and statements under the captions "THE ISSUER" and "PRIVATE
PLACEMENT OF BONDS", the information and statements under the caption
"THE BONDS - Book Entry Only System" and matters relating thereto, and
the information and statements in the Appendix thereto, as to which the
Borrower makes no representations) was or will be, as of their
respective dates, and as of the Closing Date will be, true, correct and
complete in all material respects, and the Preliminary Offering
Memorandum and the Offering Memorandum do not and will not contain any
untrue or misleading statement of
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a material fact or omit to state any material fact necessary to make
the statements therein, in light of the circumstances under which they
are made, not misleading.
(h) The Borrower will furnish such information, execute such
instruments, and cooperate with the Agent as the Agent may reasonably
request in order for the Agent (i) to qualify the Bonds, or perfect an
exemption from registration, for offer and sale of the Bonds under the
Blue Sky or other securities laws and regulations of such states and
other jurisdictions of the United States as the Agent may designate,
and (ii) to determine the eligibility of the Bonds for investment under
the laws of such states and other jurisdictions, and the Borrower will
use its best effort to continue such exemption or qualification in
effect so long as required for distribution of the Bonds.
(i) Any certificate signed by any officer of the Borrower and
delivered to the Issuer, Bond Counsel, the original purchasers of the
Bonds, the Agent or the Bank at or before the Closing Date shall be
deemed a representation and warranty by the Borrower to the Issuer,
Bond Counsel, the original purchasers of the Bonds, the Agent and the
Bank as to the truth of the statements therein contained.
5. Covenants of the Issuer. The Issuer covenants that it will observe
all covenants of the Issuer in the Indenture and the Agreement and will not
issue or sell any bonds or obligations other than the Bonds (or any Additional
Bonds issued pursuant to the Indenture), the principal of, premium, if any, and
interest on which are payable in whole or in part from the Revenues or are to be
secured by any lien on, or pledge of, the Revenues.
6. Covenants of the Borrower. The Borrower covenants as follows:
(a) The Borrower will apply the proceeds of the Bonds as
provided in and subject to all of the terms and provisions of the
Agreement and will observe all covenants of the Borrower in such
instrument.
(b) The Borrower will take such action as may be
reasonably requested to facilitate the timely consummation of
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the transactions contemplated by this Bond Placement Agreement.
(c) The Borrower will notify the Issuer, the Agent and the
Bank of any material adverse change in the business, properties or
financial condition of the Borrower occurring before the Closing Date.
(d) The Borrower will not take any action or permit any action
to be taken on its behalf or cause or permit any circumstance within
its control to arise or continue, if such action would adversely affect
the excludability from gross income for federal income tax purposes of
the interest on the Bonds.
7. Conditions to the Obligations of the Agent. The obligation of the
Agent to cause payment for the Bonds on the Closing Date shall be subject, at
the option of the Agent, to the accuracy in all material respects of the
representations and warranties on the part of the Issuer and the Borrower
contained herein as of the date hereof and as of the Closing Date, to the
accuracy in all material respects of the statements of the Issuer, the Bank, and
the Borrower made in any certificates or other documents furnished pursuant to
the provisions hereof, to the performance by the Issuer and the Borrower of
their respective obligations to be performed hereunder at or prior to the
Closing Date and to the following additional conditions:
(a) At the Closing Date, the Indenture, the Letter of
Representations, the Agreement, the Note, the Bank Security Documents,
the Letter of Credit Agreement and the Letter of Credit shall have been
duly authorized, executed and delivered by the respective parties
thereto, and the Offering Memorandum shall have been delivered to the
Agent, and none of the foregoing agreements shall have been amended,
modified or supplemented so as to materially affect the content
thereof, except as may have been agreed to in writing by the Agent, and
there shall have been taken in connection therewith, with the issuance
of the Bonds, and with the transactions contemplated thereby and by
this Bond Placement Agreement, all such actions as ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
counsel to the Agent ("Agent's Counsel"), reasonably shall deem to be
necessary and appropriate;
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(b) At the Closing Date, the Offering Memorandum shall not
have been amended, modified or supplemented, except as may have been
agreed to in writing by the Agent;
(c) At or prior to the Closing Date, no event shall have
occurred or information become known which, in the reasonable judgment
of the Agent, makes untrue in any material respect any statement or
information contained in the Offering Memorandum or has the effect that
the Offering Memorandum contains any untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) At or prior to the Closing Date, the Agent shall have
received an original or copies of the following documents, in each case
satisfactory in form and substance to the Agent and in each case
conforming in all material respects with any description thereof
contained in the Offering Memorandum:
(i) The Indenture, the Letter of Representations, the
Agreement, the Bonds, the Letter of Credit Agreement, the
Letter of Credit, the Bank Security Documents, the Remarketing
Agreement and the Note, each duly executed and delivered by
the respective parties thereto, with such amendments,
modifications or supplements as may have been agreed to in
writing by the Agent;
(ii) The opinions of Jenkens & ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ &
▇▇▇▇▇, counsel to the Borrower, dated the Closing Date, in
substantially the form attached hereto as Exhibits A and B,
respectively;
(iii) The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇, P.A., counsel to the
Bank, dated the Closing Date, in substantially the form
attached hereto as Exhibit C;
(iv) The opinions of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Bond
Counsel, and supplemental opinions of Bond Counsel, each dated
the Closing Date, in substantially the forms attached hereto
as Exhibits D and E, respectively;
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(v) The opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Agent's Counsel,
dated the Closing Date, in substantially the form attached
hereto as Exhibits F and G;
(vi) A certificate, dated the Closing Date, signed by a
duly authorized officer of the Bank, in substantially the form
attached hereto as Exhibit H;
(vii) A certificate, dated the Closing Date, signed by a
duly authorized official of the Issuer, in form satisfactory
to the Agent and the Agent's Counsel, to the effect that the
representations and warranties of the Issuer set forth in
Section 3 hereof are true, correct and complete on the date
thereof;
(viii) A certificate, dated the Closing Date, signed by a
duly authorized officer of the Borrower, in form satisfactory
to the Agent and the Agent's Counsel, to the effect that the
representations and warranties of the Borrower set forth in
Section 4 hereof are true, correct and complete on the date
thereof; and
(ix) Such additional legal opinions, certificates,
proceedings, instruments and other documents as the Agent or
Agent's Counsel may reasonably request to evidence compliance
by the Bank, the Trustee or the Borrower with legal
requirements of closing, and to certify the truth and
accuracy, as of the Closing Date, of the representations of
the Issuer and the Borrower contained herein and the due
performance or satisfaction by the Issuer and the Borrower at
or prior to such time of all agreements then to be performed
and all conditions then to be satisfied by each of them.
(e) Between the date hereof and the Closing Date, legislation
shall not have been enacted by the Congress or be actively considered
for enactment by Congress, or recommended to the Congress for passage
by the President of the United States, or introduced to either house of
the Congress, nor a decision rendered by any court of competent
jurisdiction, or the Tax Court of the United States, nor any order,
ruling, regulation or official statement made by the United States
Treasury Department or the Internal Revenue Service, with the
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purpose or effect of imposing federal income taxation upon revenues or
other income of the character derived by the Issuer under the Agreement
or upon the interest to be paid on the Bonds or on bonds of the general
character of the Bonds.
(f) Between the date hereof and the Closing Date, legislation
shall not have been enacted by the Congress or be actively considered
for enactment by Congress, or recommended to the Congress for enactment
by the President of the United States, or introduced or favorably
reported for passage to either house of the Congress, and neither a
decision, order or decree of a court of competent jurisdiction, nor an
order, ruling, regulation or official statement of or on behalf of the
Securities and Exchange Commission shall have been rendered or made,
with the purpose or effect that the issuance, offering or sale of the
Bonds or any related security or obligations of the general character
of the Bonds or any related security as contemplated hereby, or the
execution and delivery of the Indenture, is or would be in violation of
any provision of, or is or would be subject to registration or
qualification requirements under, the Securities Act or the Trust
Indenture Act.
(g) Between the date hereof and the Closing Date, there shall
not have occurred any action by the Comptroller of the Currency, the
Federal Reserve Board, the Federal Deposit Insurance Corporation, or
any governmental agency or court which calls into question and validity
or enforceability of
the Letter of Credit.
(h) No event shall have occurred or fact exist which makes
untrue, incorrect or inaccurate, in any material respect as of the time
the same purports to speak, any statement or information contained in
the Offering Memorandum, or which is not reflected in the Offering
Memorandum but should be reflected therein as of the time and for the
purpose for which the Offering Memorandum is to be used in order to
make the statements and information contained therein not misleading in
any material respect as of such time.
(i) None of the following shall have occurred: (i)
additional material restriction not in force as of the date hereof
shall have been imposed upon trading in securities
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generally by any governmental authority or by any national securities
exchange or such trading shall have been suspended; (ii) the New York
Stock Exchange or other national securities exchange, or the National
Association of Securities Dealers, Inc. or other national securities
association, or the Municipal Securities Rulemaking Board or other
similar national self-regulatory rule-making board, or any governmental
authority, shall impose, as to the Bonds or similar obligations, any
material restrictions not now in force, or increase materially those
now in force, with respect to the extension of credit by, or change in
the net capital requirements of, underwriters; (iii) a general banking
moratorium shall have been declared by federal, New York, Arizona or
Ohio authorities; or (iv) a war involving the United States of America,
whether or not declared, or any other national or international
calamity or crisis, or a financial crisis, shall have occurred, the
effect of which, in the judgment of the Agent, would make it
impracticable to market the Bonds or would materially and adversely
affect the ability of the Agent to enforce contracts for the sale of
the Bonds.
(j) All matters relating to this Bond Placement Agreement, the
Offering Memorandum, the Bonds, the Bond Resolution, the Indenture, the
Letter of Representations, the Agreement, the Note, the Bank Security
Documents, the Letter of Credit, the Letter of Credit Agreement and the
consummation of the transactions contemplated by this Bond Placement
Agreement and the Offering Memorandum, shall be reasonably satisfactory
to and subject to the approval of the Agent.
If the conditions to the Agent's obligations contained in this Bond
Placement Agreement are not satisfied or if the Agent's obligations shall be
terminated for any reason permitted herein, this Bond Placement Agreement shall,
at the option of the Agent, terminate and neither the Agent, the Issuer, nor the
Borrower shall have any further obligations hereunder, except as provided in
Section 10 with respect to the payment of certain expenses.
8. No Pecuniary Liability of Issuer. No provision, covenant, or
agreement contained in this Bond Placement Agreement, and no obligation herein
imposed upon the Issuer, or the breach thereof, shall constitute the debt or
indebtedness of the Issuer or the
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State of Texas or any political subdivision thereof within the meaning of any
Texas constitutional provision or statutory limitation or shall constitute or
give rise to a pecuniary liability of the Issuer or the State of Texas or any
political subdivision thereof or a charge against its general credit or taxing
powers. In making the agreements, provisions and covenants set forth in this
Bond Placement Agreement, the Issuer has not obligated itself, except to the
extent that the Issuer is authorized to act pursuant to Texas law and except
with respect to the Revenues. The Issuer and any of its officials, officers or
employees shall have no monetary liability arising out of the obligations of the
Issuer hereunder or in connection with any covenant, representation or warranty
made by the Issuer herein, and neither the Issuer nor its officials shall be
obligated to pay any amounts in connection with the transactions contemplated
hereby other than from Revenues or other moneys received from the Borrower.
9. Survival of Representations, Warranties, Covenants, Agreements and
Indemnities. All representations, warranties, covenants, agreements and
indemnities contained in this Bond Placement Agreement, or contained in the
certificates of members, officials, partners or officers of the Issuer or of the
Borrower submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation by or on behalf of the Agent or any
person controlling the Agent, and shall survive delivery of the Bonds to the
Agent and payment therefor by the original purchasers.
10. Expenses. All reasonable costs and expenses incident to the
performance of the Issuer's, the Agent's, and the Borrower's obligations in
connection with the authorization, issuance and sale of the Bonds shall be paid
by the Borrower including fees and expenses of the Issuer, including reasonable
fees and expenses of its counsel, fees and expenses of the Bank, including
reasonable fees and expenses of its counsel, fees and expenses of the Trustee,
reasonable fees and expenses of Bond Counsel and reasonable fees and expenses of
the Agent's Counsel. All such costs and expenses shall be paid by the Borrower
whether or not the Bonds are actually issued and sold. To the extent statements
for such costs and expenses are available on the Closing Date, the Borrower
shall pay such costs and expenses on the Closing Date.
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11. Indemnification.
(a) General. The Agent and the Borrower (each, an
"Indemnifying Party") each covenants and agrees to indemnify the other
parties hereto and their respective directors, council members,
officers, partners, trustees, representatives and employees and each
person, if any, who controls any of such persons within the meaning of
Section 20 of the Securities Exchange Act (collectively, the
"Indemnified Parties") for, and to hold each Indemnified Party harmless
against, all liabilities, claims, costs, losses and expenses (including
without limitation, to the extent permitted by law, reasonable
attorneys' fees and expenses), imposed upon or asserted against the
Indemnified Parties:
(i) Under any statute or regulation, at law, in
equity or otherwise, insofar as those liabilities, claims,
costs, losses and expenses arise out of or are based upon any
untrue statement or alleged untrue statement of a material
fact with reference to the information referred to in Section
11(c) hereof contained in the Preliminary Offering Memorandum,
the Offering Memorandum, or any amendment thereof or
supplement thereto, or any other sales material used by the
Agent (provided that the Indemnifying Party shall have
approved in writing the use of such sales material), or which
arise out of or are based upon any omission or alleged
omission to state therein with reference to such information a
material fact which is required to be stated therein or which
is necessary to make the statements made therein, in light of
the circumstances under which they were made, not misleading;
(ii) Pursuant to any action, claim or proceeding brought
in connection with any of the foregoing; and
(iii) To the extent of the aggregate amount paid in
settlement of any actions, claims or proceedings, commenced or
threatened, based upon any untrue statement, alleged untrue
statement, omission or alleged omission described above, if
the settlement is effected with the written consent of the
Indemnifying Party;
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and (unless the Indemnifying Party assumes the defense of the
applicable claim, suit, action or proceeding pursuant to paragraph (b)
below) shall reimburse any legal or other expenses incurred reasonably
by any Indemnified Party in connection with investigating and defending
any liability, claim, cost, loss, expense, action or proceeding
described above; provided, nothing herein shall require the
Indemnifying Party to pay for any losses, claims, damages, liabilities
or expenses resulting from the negligence or the willful misconduct of
an Indemnified Party, if such Indemnified Party is the Agent or the
Borrower or the respective members, directors, officers, partners,
trustees, representatives and employees or controlling persons of the
Agent or the Borrower. At the request and the expense of the
Indemnifying Party, each Indemnified Party shall cooperate in making
any investigation and defense of any action, claim or proceeding and
shall assert appropriately the rights, privileges and defenses which
are available to the Indemnified Party in connection therewith.
(b) Procedure. The Indemnified Party shall, in the event of
any claim, suit, action or proceeding against it in respect of which
indemnity may be sought on account of any indemnity agreement by the
Indemnifying Parties contained herein, promptly give written notice
thereof to the appropriate Indemnifying Parties. When such notice is
given, the Indemnifying Party shall be entitled to participate at its
own expense in the defense of, or if it so elects, to assume the
defense of, such claim, suit, action or proceeding, in which event such
defense shall be conducted by counsel chosen by the Indemnifying Party,
but if the Indemnifying Party shall elect not to assume such defense,
it shall reimburse such Indemnified Party or Parties for the reasonable
fees and expenses of any counsel retained by them. The foregoing
notwithstanding, in the event that the Indemnifying Party shall assume
such defense and any Indemnified Party or Parties shall be advised by
independent legal counsel that counsel selected by the Indemnifying
Party is not fully and adequately protecting such party or parties and
representing the interests of such party or parties, any such
Indemnified Party or Parties shall have the right to conduct its or
their own defense against any such claim, suit, action or proceeding in
addition to or in lieu of any defense conducted by the
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Indemnifying Party, and the Indemnifying Party shall indemnify and hold
harmless such Indemnified Party or Parties against and from any and all
suits, claims, damages, liabilities or expenses whatsoever (including
reasonable fees and expenses of counsel selected by such Indemnified
Party or Parties) incurred by and arising out of or in connection with
any such claim, suit, action or proceeding. An Indemnifying Party shall
not be liable for the settlement of any claim, suit, action or
proceeding effected without its consent, which consent shall not be
withheld unreasonably.
(c) Indemnified Information. The information as to which
each Indemnifying Party hereto indemnifies the Indemnified
Parties is as follows:
(i) The Borrower as Indemnifying Party: the entire
Preliminary Offering Memorandum and the entire Offering
Memorandum, with the exception of the information set forth in
(ii) below; and
(ii) The Agent as Indemnifying Party: information
in the section of the Preliminary Offering Memorandum and
the Offering Memorandum captioned "PRIVATE PLACEMENT OF
BONDS".
12. Parties in Interest. This Bond Placement Agreement is made solely
for the benefit of the Agent, the Issuer, the Borrower and their respective
successors and assigns, and the Indemnified Parties, and no other person,
partnership, association or corporation shall acquire or have any rights under
or by virtue of this Bond Placement Agreement.
13. Notices. Any notice or other communication to be given
to any party to this Bond Placement Agreement may be given by
delivering the same in writing at the respective addresses set
forth below:
Issuer: Capital Industrial Development Corporation
P. O. ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇, President
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Borrower: CCIR of Texas Corp.
c/o Continental Circuits Corp.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Agent: Banc One Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
14. Severability. If any provisions of this Bond Placement Agreement
shall be held or deemed to be or shall, in fact, be inoperative, invalid 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
circumstance shall not have the effect of rendering the provision in question
inoperative or unenforceable in any other case or circumstance, or of rendering
any other provision or provisions of this Bond Placement Agreement invalid,
inoperative or unenforceable to any extent whatever.
15. Applicable Law. This Bond Placement Agreement shall be
governed by and construed in accordance with the laws of the State
of Texas.
[Remainder of page left blank intentionally]
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16. Counterparts. This Bond Placement 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.
CAPITAL INDUSTRIAL DEVELOPMENT
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Its: President
------------------------------------
BANC ONE CAPITAL CORPORATION,
as Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Senior Vice President
CCIR OF TEXAS CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Its: Vice President and Secretary
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