LOAN AGREEMENT BETWEEN MISSISSIPPI BUSINESS FINANCE CORPORATION AND GULF SOUTH PIPELINE COMPANY, LP Dated as of December 1, 2008
Exhibit 4.2
Execution Version
BETWEEN
MISSISSIPPI
BUSINESS FINANCE CORPORATION
AND
GULF
SOUTH PIPELINE COMPANY, LP
Dated
as of December 1, 2008
TABLE OF CONTENTS
ARTICLE
I. DEFINITIONS
1
Section
1.1. Definitions
1
ARTICLE
II. REPRESENTATIONS 6
Section
2.1. Representations of the
Issuer 6
Section
2.2. Representations of
Company
6
Section
2.3. Benefits Under the
Act 8
ARTICLE
III. COMPLETION OF PROJECT; ISSUANCE OF
BONDS 8
Section
3.1. Completion of Project; Best
Efforts 8
Section
3.2. Issuance of
Bonds
8
Section
3.3. Loan; Disposition of Bond
Proceeds 8
Section
3.4. Requisition for Project
Funds
9
Section
3.5. Advance Under Loan
Agreement
9
Section
3.6. Certificate of
Completion
9
Section
3.7. Completion of
Project
9
Section
3.8. Default by
Contractor
10
Section
3.9. Investment of Project
Fund
10
ARTICLE
IV. SECURITY; LOAN PAYMENTS; OTHER
OBLIGATIONS
10
Section
4.1. Note
10
Section
4.2. Loan
Payments 10
Section
4.3. Obligation to Make Payments
Absolute
11
Section
4.4. Sole Possession of Project by the
Company
11
Section
4.5. Maintenance of
Project
11
Section
4.6. Taxes and Assessments; Tax
Indemnity
11
Section
4.7. Operation of
Project 12
Section
4.8. Payment of
Expenses
12
Section
4.9. Payments Continue Upon Destruction of
Project
12
Section
4.10. Payment of Initial Administrative
Fee
12
Section
4.11. Release and Indemnification of the
Issuer 12
Section
4.12. Insurance
13
ARTICLE
V. SPECIAL
COVENANTS
13
Section
5.1. No Warranty as to Suitability of Project by the
Issuer
13
Section
5.2. Continuation of Existence of
Company
13
Section
5.3. [Reserved]
14
Section
5.4. Agreement to
Cooperate
14
Section
5.5. Qualification in
Mississippi
14
Section
5.6. [Reserved]
14
Section
5.7. Maintenance 14
Section
5.8. Environmental Law
Compliance
14
Section
5.9. [Reserved]
15
Section
5.10. [Reserved]
15
Section
5.11. Maintenance of Books and Records;
Inspection
15
Section
5.12. Affirmative
Covenants
15
Section
5.13. [Reserved]
15
Section
5.14. County and City Approval of Ad Valorem Tax
Exemptions
15
ARTICLE
VI. ASSIGNMENT, LEASE AND SALE OF
PROJECT
15
Section
6.1. Disposal of Project and Assets by
Company
16
ARTICLE
VII. EVENTS OF DEFAULT AND
REMEDIES
16
Section
7.1. Default
16
Section
7.2. Remedies Upon
Default
17
Section
7.3. No Remedy
Exclusive
17
Section
7.4. Payment of Fees and
Expenses
17
Section
7.5. Effect of
Waiver 18
ARTICLE
VIII. PREPAYMENT OF
LOAN
18
Section
8.1. Obligations to Accelerate Loan
Payments
18
ARTICLE
IX. MISCELLANEOUS 18
Section
9.1. Notices 18
Section
9.2. Parties
Interested 19
Section
9.3. Amendment to
Agreement
19
Section
9.4. Counterparts
19
Section
9.5. Severability of Invalid
Provisions
19
Section
9.6. Governing
Law 20
Section
9.7. No Oral
Agreement 20
EXHIBIT
A: BUILDING
DESCRIPTION
EXHIBIT
B: PROJECT
SITE
EXHIBIT
C: PROMISSORY
NOTE
EXHIBIT
D: BOND
ADVANCE AND PAYMENT GRID
EXHIBIT
E: FORM
OF REQUISITION CERTIFICATE
THIS LOAN AGREEMENT, dated as
of December 1, 2008, between Mississippi Business Finance Corporation, a public
corporation of the State of Mississippi (the "Issuer") and Gulf South Pipeline
Company, LP, a Delaware limited partnership (the "Company"),
W
I T N E S S E T H:
WHEREAS, the Issuer is
authorized by the provisions of Title 57, Chapter 10, Article 7, of the
Mississippi Code of 1972, as amended and supplemented (the "Act"), to, among
other things, provide and finance economic development projects to eligible
companies in the State;
WHEREAS, the Issuer has
determined that the Company is an "eligible company" as defined by the Act in
need of assistance to permanently finance the Cost (as hereinafter defined) of
the Project (as hereinafter defined);
WHEREAS, the Issuer is
authorized pursuant to the Act to issue its revenue bonds and to lend the
proceeds thereof to enable eligible companies to borrow to finance the Cost of
said projects;
WHEREAS, the Company has
requested the Issuer to issue its revenue bonds and to lend the proceeds from
the sale thereof to the Company to finance a portion of the Cost of the Project
(as hereinafter defined);
WHEREAS, the Issuer has, by
due corporate action, authorized the issuance, from time to time, of its
Mississippi Business Finance Corporation Taxable Industrial Development Revenue
Bonds, (Gulf South Pipeline Company, LP Project), Series 2008 (the "Bonds"),
pursuant to the Act in the maximum aggregate principal amount of $175,000,000 in
order to loan the proceeds thereof to the Company (the "Loan") to finance the
Project, pursuant to a contractual arrangement whereby the amount of Loan
Payments (as hereinafter defined) to be made to the Issuer by the Company shall
be sufficient to pay the principal of, premium, if any, and interest on
such Bonds secured by such Loan Payments as and when the same shall
become due and payable;
WHEREAS, Boardwalk Pipelines,
LP ("Purchaser") has agreed to purchase the Bonds (as hereinafter defined) the
proceeds of which will be loaned to the Company by the Issuer to finance the
Project (as hereinafter defined); and
WHEREAS, the Bonds are to be
issued pursuant to the Indenture (as hereinafter defined) to provide monies for
such Loan; and the Company will execute a Note (as hereinafter defined) pursuant
to this Agreement (as hereinafter defined) to evidence and secure its
obligations to repay said Loan.
NOW,
THEREFORE, THIS AGREEMENT WITNESSETH:
That the
parties hereto, intending to be legally bound hereby and in consideration of the
mutual covenants hereinafter contained, do hereby agree as follows:
ARTICLE
I.
DEFINITIONS
Section
1.1. Definitions. The
terms set forth below shall have the following meanings in this Loan Agreement,
unless the context clearly otherwise requires. Except where the context
otherwise requires, words importing the singular number shall include the plural
number and vice versa. Capitalized terms used and not defined herein shall have
the meanings ascribed to them in the Indenture.
"Act"
shall mean Title 57, Chapter 10, Article 7, of the Mississippi Code of 1972, as
amended and supplemented.
"Administration
Expenses" shall mean the reasonable, necessary and documented expenses incurred
by the Issuer pursuant to this Agreement or the Indenture, including the Initial
Administrative Fee, and the compensation and expenses paid to or incurred by the
Trustee or any Paying Agent under the Indenture.
"Agreement"
shall mean this Loan Agreement as amended or supplemented from time to time in
accordance with the terms hereof.
"Authorized
Company Representative" shall mean any person or persons from time to time
designated to act on behalf of the Company by a written certificate, signed on
behalf of the Company by the President or one of the Vice Presidents of its
general partner or other duly authorized Person and the Secretary or Treasurer
of its general partner or other duly authorized Person and furnished to the
Issuer and the Trustee, containing the specimen signature of each such
person.
"Bondholder"
or "holder of the Bonds" or "holder" shall mean the Registered Owner(s) of any
fully registered Bond.
"Bond
Counsel" shall mean Butler, Snow, O’Mara, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, PLLC, Jackson,
Mississippi, or an attorney-at-law or a firm of attorneys, designated by the
Issuer, of nationally recognized standing in matters pertaining to bonds issued
by states and their political subdivisions, duly admitted to the practice of law
before the highest Court of any state of the United States of
America.
"Bond
Counsel's Opinion" shall mean an opinion signed by Bond Counsel and satisfactory
to the Issuer, the Trustee, and the Purchaser.
"Bond
Fund" shall mean the fund established pursuant to Section 6.1 of the
Indenture.
"Bond
Purchase Agreement" shall mean the Bond Purchase Agreement dated as of December
1, 2008, among the Issuer, the Company and the Purchaser.
"Bond
Register" and "Bond Registrar" shall have the respective meanings specified in
Section 2.9 of the Indenture.
"Bonds,"
or "Bond" means up to $175,000,000 Mississippi Business Finance Corporation
Taxable Industrial Development Revenue Bonds, Series 2008 (Gulf South Pipeline
Company, LP Project) issued under the Indenture; and any Bonds thereafter
authenticated and delivered in lieu of or in substitution for such Bonds,
pursuant to the provisions of' the Indenture.
"Building"
or "Buildings" shall mean the buildings and improvements generally described on
Exhibit A hereto constructed in part through a loan of the proceeds of the Bonds
and located on the Project Site, as described in Exhibit B to this Agreement,
and all additions, modifications, renovations, rehabilitations, expansions,
construction, and improvements thereto, as they may at any time
exist.
"Business
Day" shall mean any day, other than a Saturday or Sunday or other day, on which
the Purchaser, Trustee or Company is not required or authorized by law to remain
closed.
"Company"
shall mean Gulf South Pipeline Company, LP, a Delaware limited partnership, or
any person or entity which is the surviving, resulting or transferee person in
any merger, consolidation or transfer of assets permitted under Section 5.2 of
this Agreement and shall also mean, unless the context otherwise requires, and
any assignee of this Agreement as permitted by Section 6.1 of this
Agreement.
2
"Completion
Date" shall mean the date of completion of the Project, as that date shall be
certified pursuant to Section 5.3 of the Indenture.
"Cost" or
"Cost of the Project" shall mean, and be deemed to include to the extent
permitted by the Act, costs incurred after April 15, 2006 with respect the
Mississippi Expansion Project and February 10, 2007 with respect to the
Southeast Expansion Project, (a) obligations incurred for labor, Equipment and
other expenses paid to contractors, builders and materialmen in connection with
the construction, installation and equipping of the Project and improvements
thereto including, but not limited to, improvements to the Project Site; (b) the
cost of contract or performance bonds or of other bonds and of insurance of all
kinds that may be required or necessary prior to or during the course of
construction of the Project, (c) all costs of architectural and engineering
services, including the expenses of the Issuer and the Company for test borings,
surveys, test and pilot operations, estimates, plans and specifications and
preliminary investigations therefor, and for supervising construction, as well
as for the performance of all other duties required by or consequent upon the
proper completion of the Project; (d) compensation and expenses of the Issuer
and the Trustee, legal, accounting, financial and printing expenses, fees and
all other expenses incurred in connection with the issuance of the Bonds, which
are not otherwise provided for under the terms of this Agreement; (e) all other
costs which the Issuer or the Company shall be required to pay under the terms
of any contract or contracts for the acquisition (by purchase, lease or
otherwise), construction, installation and equipping of the Project; (f) any
sums required to reimburse the Issuer or the Company for advances made by either
of them for any of the above items, or for any other costs incurred and for work
done by any of them, which are properly chargeable to the Project; (g)
Administration Expenses; and (h) any other expenses or fees of the Issuer or the
Trustee, which in the opinion of the Issuer or the Trustee, are related to the
Project or the Bonds, including but not limited to, commitment and legal fees
and the costs, fees and expenses in connection with the initial issuance and
sale of the Bonds.
"Equipment"
shall mean those items of machinery, equipment, fixtures and other tangible
personal property, which have been or are to be acquired and installed in the
Buildings or elsewhere at or on the Project Site with the proceeds of the Bonds
and any item of machinery, equipment, fixtures and other tangible personal
property which may be acquired and installed in the Buildings or elsewhere on
the Project Site in substitution thereof or in addition thereto pursuant to the
provisions of this Agreement, and any renewals and replacements of any of the
foregoing. At such time as the Project is completed, a complete detailed list of
Equipment and other items of personalty acquired with the proceeds of the Bonds
can be found in the records of the Project Fund maintained by the
Trustee.
"Event(s)
of Default" shall mean any Event(s) of Default specified in Section 7.1 of this
Agreement.
"Governmental
Authority" means any federal, state, local, foreign or other governmental or
administrative body, instrumentality, department or agency or any court,
tribunal, administrative hearing body, arbitration panel, commission, or other
similar dispute-resolving panel or body.
"Indenture"
shall mean the Indenture related to the Bonds dated as of December 1, 2008,
between the Issuer and the Trustee, as the same may be amended and supplemented
from time to time.
"Initial
Administrative Fee" shall mean the initial fee of the Issuer with respect to the
Bonds in the amount of $70,000.00 which fee is required to be paid by the
Company to the Issuer pursuant to this Agreement.
3
"Investment
Securities" shall mean, only to the extent permitted by State law, any of the
following unless the Company has determined that the same are not at the time
legal investments of the Company's monies:
(a) savings
accounts and certificates of deposit issued by a commercial bank or savings and
loan association incorporated under the laws of the United States of America or
any state thereof or the District Of Columbia having a capital stock and surplus
of more than $50,000,000, including the Trustee, or which are fully
collateralized by investments of the type described in (b) below or are rated
either A-I or A-2 by Standard & Poor's Corporation or P-I or P-2 by ▇▇▇▇▇'▇
Investors Service, Inc.;
(b) bonds,
notes and other evidences of indebtedness of the United States of America or the
State and any other security unconditionally guaranteed as to the payment of
principal and interest by the United States of America or any agency or
instrumentality thereof;
(c) repurchase
agreements involving the Purchase and resale of investments described in (b)
above; provided, that (i) the purchase price of any such agreement shall at no
time exceed the fair market value of the investments underlying the same, (ii)
each such agreement shall provide for the payment of cash or deposit of
additional investments at least monthly so that the sum of the fair market value
of investments and the amount of cash underlying the same shall remain at least
equal to the purchase price thereof, (iii) the Trustee shall take physical
possession of such investments or the Trustee shall be named as the record owner
of such investments in the records of a Federal Reserve Bank, in each case no
later than the time the purchase price therefor is paid by the Trustee, (iv) the
other party to such repurchase agreement shall be a commercial bank or savings
and loan association incorporated under the laws of the United States or any
state thereof or the District of Columbia or a securities firm registered under
the Securities Exchange Act of 1934, in either case having combined capital and
surplus of at least $50,000,000 including the Trustee, and (v) the repurchase
obligations are at the demand of the Trustee or have a maturity of less than one
year;
(d) any money
market fund rated "AAA" by ▇▇▇▇▇'▇ Investors Service, Inc. comprised of the
investments of the type described in paragraph (b); and
(e) any other
investment or investment agreement as the Registered Owner(s) of not less than
fifty-one percent (51%) in the aggregate principal amount of the Bonds then
Outstanding may approve.
"Issuer"
shall mean the Mississippi Business Finance Corporation, constituting a public
body corporate and a political subdivision of the State, its successors and
assigns, and any public corporation resulting from or surviving any
consolidation or merger to which it or its successors may be a
party.
"Loan"
means the loan made by the Issuer to the Company from the proceeds of the
issuance of the Bonds.
"Loan
Documents" shall mean this Agreement, the Indenture, the Bond Purchase
Agreement, the Note, the Bond, the Assignment of this Agreement, and the
Assignment of the Note, and any and all promissory notes executed by the Company
in favor of the Issuer, and all other security agreements, documents,
instruments, guarantees, certificates and agreements executed and/or delivered
by the Company, in connection with this Agreement, the Bonds, the Indenture and
the Bond Purchase Agreement.
"Loan
Payments" shall mean the payments required to be made by the Company pursuant to
Section 4.2 hereof.
"MBFC"
shall mean Mississippi Business Finance Corporation.
4
"Mississippi
Expansion Project" shall mean the construction of a natural gas pipeline through
Warren, Hinds, Copiah and ▇▇▇▇▇▇▇ Counties in Mississippi.
"Note"
shall mean the promissory note of the Company issued by the Company to the
Issuer in accordance with Section 4.1 hereof, the form of which is attached
hereto as Exhibit C.
"Outstanding,"
when used with reference to Bonds, shall mean, at any date as of which the
amount of outstanding Bonds is to be determined, the aggregate of all Bonds
authorized, issued, authenticated and delivered under the Indenture
except:
(a) Bonds
canceled or surrendered to the Trustee for cancellation pursuant to Section 2.12
of the Indenture prior to such date; and
(b) Bonds
in lieu of or in substitution for which other Bonds shall have been
authenticated and delivered pursuant to the Indenture unless proof satisfactory
to the Trustee and the Company is presented that any such Bond is held by a bona
fide holder in due course.
In
determining whether holders or a requisite aggregate principal amount of Bonds
outstanding have concurred in any request, demand, authorization, direction,
notice, consent or waiver under the Indenture, Bonds which are owned by the
Company or the Issuer shall be disregarded and deemed not to be outstanding for
the purpose of any such determination; provided, however, that for the purpose
of determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Bonds
which the Trustee knows to be so owned shall be so disregarded.
"Person"
or "person" shall mean an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
governmental authority, or other entity of whatever nature.
"Project"
shall mean collectively, the Mississippi Expansion Project and the Southeast
Expansion Project.
"Project
Fund" shall mean the fund created under Section 5.1 of the
Indenture.
"Project
Site" shall mean the real property described in Exhibit B attached
hereto.
"Purchaser"
shall mean Boardwalk Pipelines, LP.
"Redemption
Price" shall mean the principal of and interest on the Bonds to be redeemed at
par, without premium, and all other amounts due and owing in respect to the
Bonds.
"Registered
Owner(s)" shall mean the Person or Persons in whose name or names the particular
registered Bond or Bonds shall be registered on the Bond Register.
"Revenues"
shall mean all payments, receipts and revenues payable by the Company to the
Issuer under this Agreement (except payment of Administration Expenses and
indemnification payments pursuant to Sections 4.2 and 4.11, respectively, of
this Agreement) and any other payments, receipts and revenues derived by the
Issuer from the Company under this Agreement.
"Southeast
Expansion Project" shall mean the construction of a natural gas pipeline through
Simpson, Clarke, Jasper and ▇▇▇▇▇ Counties in Mississippi.
5
"State"
shall mean the State of Mississippi.
"Trustee"
shall have the meaning set forth in the Indenture.
Section
1.2. Accounting
Terms. All accounting terms not specifically defined or
otherwise specified herein shall have the meanings generally attributed to such
terms under tax accrual accounting principles, as in effect from time to time,
consistently applied.
ARTICLE
II.
REPRESENTATIONS
Section
2.1. Representations of the
Issuer. The Issuer makes the following representations as the
basis for the undertakings on the part of the Company herein
contained:
(a) The
Issuer is a public corporation of the State and is authorized pursuant to the
provisions of the Act to enter into the transactions contemplated by this
Agreement.
(b) The
Issuer has full power and authority to enter into the transactions contemplated
by this Agreement and to carry out its obligations hereunder.
(c) To the
best of the Issuer’s knowledge, the Issuer is not in default under any
provisions of the laws of the State material to the performance of its
obligations under this Agreement.
(d) The
Issuer has been duly authorized to execute and deliver this Agreement and by
proper limited partnership action has duly authorized the execution and delivery
hereof and as to the Issuer, this Agreement is valid and legally binding and
enforceable in accordance with its terms, except to the extent that the
enforceability thereof may be limited (1) by bankruptcy, reorganization, or
similar laws limiting the enforceability of creditors' rights generally or (2)
by the availability of any discretionary equitable remedies.
(e) The Loan
for the Cost of the Project by the Company, as provided by this Agreement, will
further the purposes of the Act, to wit: to induce the location or expansion of
commercial facilities within the State in order to advance the public purposes
of relieving unemployment.
Section
2.2. Representations of
Company. The Company makes the
following representations as the basis for the issuance by the Issuer
of the Bonds and the undertakings on the part of the Issuer herein
contained:
(a) The
Company is a limited partnership duly formed under the laws of the State of
Delaware, the Company is in good standing in the State of Delaware, the Company
is duly qualified to transact business in the State of Mississippi
and the Company is in good standing in the State of Mississippi, has power to
enter into the Loan Documents, and by proper limited partnership action has duly
authorized the execution and delivery of the Loan Documents, and as to the
Company, the Loan Documents are valid and legally binding and enforceable in
accordance with their respective terms, except to the extent the enforceability
thereof may be limited (i) by bankruptcy, reorganization, or similar laws
limiting the enforceability of creditors' rights generally or (ii) by the
availability of any discretionary equitable remedies. A copy of a resolution of
the Board of Directors of the Company’s general partner authorizing this
Agreement and the execution of related documents by the officers of the general
partner of the Company shall be furnished by the Company at or prior to
closing.
(b) The
Company is not in violation of any provision of its certificate of limited
partnership, its agreement of limited partnership, or any laws in any manner
material to its ability to perform its obligations under the Loan Documents, has
power to enter into the Loan Documents and has duly authorized the execution and
delivery of the Loan Documents by proper limited partnership
action.
6
(c) The
Project consists of the acquisition, construction and installation of Buildings
and Equipment as more particularly described in Exhibit A to this
Agreement.
(d) The
estimated Cost of the Project exceeds the principal amount of the
Loan.
(e) The
Company is engaged in a commercial enterprise and other permissible purposes
under the Act.
(f) The
Company has been advised by the Issuer that it is an eligible company as defined
in the Act.
(g) Company
is not in default under, and has not breached in any material respect, any
material agreement or instrument to which it is a party or by which it may be
bound, which default would materially and adversely affect the business or
financial condition of the Company. Neither the execution and delivery of the
Loan Documents, the consummation of the transactions contemplated hereby or
thereby, nor the fulfillment of or compliance with the terms and conditions of
the Loan Documents, conflicts with or results in a breach of the
terms, conditions or provisions of any agreement or instrument to which the
Company is now a party or by which it, or any of its property, is bound, or
constitutes a default under any of the foregoing, or results in the creation or
imposition of any impermissible lien, charge or encumbrance whatsoever upon any
of the property or assets of the Company under the terms of any instrument or
agreement.
(h) [Reserved].
(i) [Reserved].
(j) [Reserved].
(k) All
information furnished by the Company to the Issuer and the Purchaser for the
purpose of approving the Project and the financing of the Loan through the
issuance and sale of the Bonds is true, accurate and complete in all material
respects as of the date hereof.
(l) The Loan
is not being made to refinance any existing debt, except for the repayment of
existing debt which qualifies as a Cost of the Project, or any costs, expenses
or other obligations incurred by the Company or any other Person on behalf of
the Company prior to April 15, 2006, with respect to the Mississippi Expansion
Project, and February 10, 2007 with respect to the Southeast Expansion
Project.
(m) There are
no suits or proceedings pending or to the knowledge of the Company threatened
against or affecting the Company, which, if adversely determined, would have a
material adverse effect on the transactions contemplated by the Loan Documents
or which in any way would adversely affect the enforcement or validity of the
Loan Documents or the ability of the Company to perform its obligations under
this Agreement, and there are no proceedings by or before any governmental
commission, board, bureau or other administrative agency pending or to the
knowledge of the Company threatened against or affecting the Company which, if
adversely determined, would have a material adverse effect on the transactions
contemplated by the Loan Documents or which in any way would adversely affect
the enforcement or validity of the Loan Documents or the ability of the Company
to perform its obligations under this Agreement.
(n) The
Company acknowledges the terms and provisions of the Indenture and will comply
with such terms of the Indenture to the extent that such terms and provisions
are applicable to the Company.
7
Section
2.3. Benefits Under the
Act. The parties hereto acknowledge that the Company has been
induced to proceed with the acquisition and construction of the Project in part
by the benefits conferred by the Act. The Issuer hereby agrees that the Company
shall be permitted to take advantage of all of the benefits provided by the Act
to the fullest extent therein set forth subject to the rules and regulations of
the Issuer. The Issuer agrees that it will not take any action to limit, curtail
or otherwise make unavailable to the Company any of the benefits available under
the Act.
ARTICLE
III.
COMPLETION
OF PROJECT; ISSUANCE OF BONDS
Section
3.1. Completion of
Project. Upon the issuance of the Bonds to finance the
Project, the Company, within three (3) years from the date of the Indenture,
will acquire, construct, install and equip such Project or cause the
Project to be acquired, constructed, installed and equipped as herein
provided, and will use its commercially reasonable efforts to cause the
acquisition, construction, installation and equipping thereof to be completed
with all reasonable dispatch, not later than three (3) years from the date of
the Indenture, but if for any reason such acquisition, construction,
installation and equipping shall not be completed there shall be no resulting
diminution in or postponement of the payments required in Section 4.2 hereof to
be paid by the Company under this Agreement and the Note.
Anything
in this Agreement notwithstanding, the Issuer shall not be obligated to complete
the acquisition, construction, installation and equipping of the Project upon
acceleration of the payment of the unpaid portion of the payments due pursuant
to this Agreement and the Note, and the making of all payments in the amount
required by and in accordance with the terms of this Agreement and the
Note.
In order
to effectuate the purposes of this Agreement, the Company will make, execute,
acknowledge and deliver, or cause to be made, executed, acknowledged and
delivered, all contracts, orders, receipts, writings and instructions, in the
name of the Company or otherwise, with or to other persons, firms or
corporations, and in general do or cause to be done all such other things as may
be requisite or proper for the construction, installation and equipping of the
Project and fulfillment of the obligations of the Company under this
Agreement.
The
Company will maintain such records in connection with the cost of the
construction, installation and equipping of the Project as to permit ready
identification thereof which records the Issuer, the Purchaser and the Trustee
shall have the right to inspect upon reasonable notice during regular business
hours.
The
Company hereby grants to the Issuer, the Trustee and the Purchaser the right,
privilege and authority to take all actions and to do all other things necessary
to effectuate the purposes of this Agreement.
Section
3.2. Issuance of
Bonds. The Issuer, concurrent with or as soon as practical
after the execution of the Indenture, will use its best efforts to sell, issue
and deliver, from time to time, the Bonds to the Purchaser and deposit the
proceeds thereof, from time to time, with the Trustee in accordance with
Sections 5.1 and 6.1 of the Indenture.
Except as
otherwise approved by the Issuer, no Bonds shall be issued under the provisions
of the Indenture with a dated date on or after December 1, 2011, which is three
(3) years following the date of this Agreement.
Section
3.3. Loan; Disposition of Bond
Proceeds. The Issuer, as Issuer of the Bonds, hereby agrees to
lend from the proceeds of the issuance and sale of the Bonds, the maximum
principal amount of up to $175,000,000 to the Company, for the purposes and in
accordance with the terms and conditions set forth in the
Indenture.
8
Section
3.4. Requisition for Project
Funds. The Issuer has, in the Indenture, authorized and
directed the Trustee to make payments from the Project Fund to pay the Cost of
the Project, upon receipt by the Trustee, with a copy to the Purchaser, of an
original executed requisition certificate in the form of EXHIBIT E attached hereto
(upon which both the Issuer and the Trustee may rely conclusively and shall be
protected in relying as set forth in the Indenture) signed by an Authorized
Company Representative, and approved by the Purchaser stating with respect to
each payment to be made: (1) the requisition number, (2) the name of the Person
to whom payment is due or, in the event such payment is to reimburse the Issuer
or the Company, the name of the Person to whom payment previously has been made
(or, in the case of payments to the Bond Fund, instructions to make
such payments to the Bond Fund), (3) the amount to be paid, (4) that there has
been no "Event of Default" under Section 7.1 of this Agreement by the Company
under this Agreement, and (5) that each obligation, item of cost or expense
mentioned therein has been properly incurred, is a proper charge against the
Project Fund and has not been the basis of any previous
withdrawal. Upon request by the Trustee, copies of all invoices or
statements from a contractor, vendor or other payee supporting each requisition
for payment from the Project Fund and clearly identifying the property or
service comprising the Cost of the Project to be paid or reimbursed shall be
made available to the Trustee for review.
If any
contract provides for retention by the Company of a portion of the contract
price, there shall be paid from the Project Fund only the net amount remaining
after deduction of such portion, until such retainage becomes due in accordance
with the terms of the contract.
Section
3.5. Advance
Under Loan Agreement
(a) The Loan
shall be advanced and remain outstanding as requested by the Company pursuant to
Section 2.1 of the Indenture. All advances shall bear interest at the rates
defined in the Indenture.
(b) In
addition to the documents required to be submitted pursuant to Section 3.4 of
this Agreement in connection with each borrowing of funds under this Agreement,
the Company shall submit to the Purchaser (and simultaneously deliver copies
thereof to the Trustee) a written notice of borrowing (a "Notice of
Borrowing,"), in the form of Exhibit A to the Bond Purchase Agreement,
specifying the amount and date of the requested borrowing.
Section
3.6. Certificate of
Completion. After the Project is completed and ready to be
placed in service, the Trustee and the Issuer shall receive a certificate of an
Authorized Company Representative stating, that (a) the construction of the
Building has been completed substantially in accordance with the Plans and
Specifications, (b) the acquisition of the Equipment has been completed, (c) the
Project complies with all zoning, planning, building and all regulations of any
other governmental entities having jurisdiction over the Project and
(d) payment, or provision therefor of the Cost of the Building and the
Equipment has been made except for any cost of the Building and the Equipment
not then due and payable or the liability for payment of which is being
contested or disputed by the Company. The Issuer and the Company
agree to cooperate in causing such certificates to be furnished to the Trustee
and the Issuer.
Section
3.7. Obligation of the Company to Complete
the Project and to Pay Costs in Event Project Fund
Insufficient. If the moneys in the Project Fund available for
payment of the Cost of the Project are not sufficient to pay the Cost of the
Project in full, the Company will complete or cause to be completed the Project
and pay or cause to be paid all of that portion of the Cost of the Project in
excess of the moneys available therefor in the Project Fund. The Issuer does not
make any warranty, either express or implied, that the moneys which will be paid
into the Project Fund will be sufficient to pay the Cost of the Project. If the
Company shall pay any portion of the Cost of the Project pursuant to the
provisions of this Section 3.7, it shall not be entitled to any reimbursement
therefor from the Issuer, the Trustee or the holders of any of the Bonds, nor
shall it be entitled to any diminution in or postponement of the Loan Payments
required in Section 4.2 hereof to be paid by the Company.
9
If, upon
the Completion Date for the Project, there shall be any surplus funds remaining
in the Project Fund not reserved to pay for the Cost of the Project, such funds
shall, (a) be deposited in the Bond Fund and used, at the earliest date
permissible under the terms of the Indenture without the payment of a call
premium or penalty, to pay principal on the Bonds through redemption or
retirement; and (b) be invested as provided for in the Indenture until such time
as such surplus funds are expended as provided for in this Section
3.7.
Section
3.8. Default by
Contractor. In the event of default of any supplier,
contractor or subcontractor under any contract made by it in connection with the
Project or in the event of a breach of warranty with respect to any materials,
workmanship or performance guaranty, the Company may proceed, either separately
or in conjunction with others, to pursue such remedies against the supplier,
contractor or subcontractor so in default and against each surety for the
performance of such contract as it may deem advisable, the Company will advise
the Issuer, the Purchaser and the Trustee of the steps it intends to take in
connection with any such default. If the Company shall so notify the Issuer and
the Trustee, the Company may, in its own name or in the name of the Issuer,
prosecute any action or proceeding or take any other action involving any such
supplier, contractor, subcontractor or surety which the Company deems reasonably
necessary, and in such event the issuer will cooperate fully with the Company.
Any amounts recovered by way of damages, refunds, adjustments or otherwise in
connection with the foregoing prior to the Completion Date shall be paid into
the Project Fund or, if recovered after the Completion Date and full disposition
of the Project Fund, shall be deposited in the Bond Fund, or in such other
manner as the Issuer shall reasonably determine to be consistent with this
Agreement.
Section
3.9. Investment of Project
Fund. Any moneys held as a part of the Project Fund or any
other fund created pursuant to the Indenture shall, at the facsimile request of
an Authorized Company Representative, confirmed in writing within two (2)
Business Days, be invested or reinvested by the Trustee as provided in Article
VII of the Indenture.
ARTICLE
IV.
SECURITY;
LOAN PAYMENTS; OTHER OBLIGATIONS
Section
4.1. Note. Concurrently
with the sale and delivery by the Issuer of the Bonds, in order to secure the
obligation of the Company hereunder, the Company will execute and deliver the
Note substantially in the form attached hereto as Exhibit C which shall be dated
the same date as the date of delivery of the Bonds.
Section
4.2. Loan Payments. The
Company hereby covenants and agrees to repay the Loan as and when due on or
before the Business Day next preceding any Interest Payment Date for the Bonds
or any other date that any payment of interest, premium, if any, or principal is
required to be made in respect of the Bonds pursuant to the Indenture, until the
principal of, premium, if any, and interest on the Bonds shall have been fully
paid or provision for the payment thereof shall have been made in accordance
with the Indenture, in immediately available funds, a sum which will enable the
Trustee to pay the amount payable on such date as principal of (whether at
maturity or upon redemption or acceleration or otherwise), premium, if any, and
interest on the Bonds as provided in the Indenture.
10
It is
understood and agreed that all Loan payments payable by the Company under this
Section are assigned without recourse or liability by the Issuer to the Trustee
as security for and for the benefit of the Owners of the Bonds (except the
Issuer’s right to receive payments, if any, under Sections 4.10 and 4.11
hereof). The Company hereby assents to such assignment. The Issuer
hereby directs the Company and the Company hereby agrees to pay to the Trustee
all payments payable by the Company pursuant to this Section.
In the
event the Company shall fail to make or cause to be made any of the payments
required in this Section 4.2, the payment in default shall continue as an
obligation of the Company until the amount in default shall have been fully
paid, and the Company will pay the same with interest thereon until paid at the
rate or rates per annum borne by the Bonds.
The
Company further agrees to pay, when due, to the party to whom such payment is
due, the Administration Expenses and all other amounts due in respect of the
Bonds, including reasonable fees and expenses of the Purchaser and Trustee, and
required under the terms and provisions of this Agreement as same shall have
become due and payable.
In
addition, in the event the Company is obligated to make payments which are
accelerated hereunder upon the occurrence of certain events, all as described in
Article VII hereof, such payments to be made in an amount sufficient (a) to
redeem at the earliest date permitted under the Indenture the Bonds to be
redeemed at the Redemption Price, (b) to pay any interest which will become due
on such Bonds to such redemption date and (c) to pay all Administration Expenses
accrued and to accrue.
Section
4.3. Obligation to Make Payments
Absolute. It is understood and agreed that all payments by the
Company under this Agreement and the Note shall be absolute and unconditional
and shall not be subject to any defense (other than payment) or any right of
set-off, counterclaim or recoupment arising out of any breach by the Issuer or
the Trustee of any obligation to the Company, whether hereunder or otherwise, or
out of any indebtedness or liability at any time owing to the Company by the
Issuer or the Trustee.
So long
as any Bonds are Outstanding, the Company will pay directly to the Issuer or the
Trustee when due, as the case may be, the amount of Administration Expenses
payable to them respectively not theretofore provided for which have then
accrued and become payable (except as otherwise provided herein), provided,
however, that before any such payment is due and payable, the Issuer or the
Trustee, as the case may be, shall give notice to the Company, at least fifteen
(15) days prior to such Payment Date, of the amount and nature of such
Administration Expenses.
Section
4.4. Sole Possession of Project by the
Company. The Company will acquire, construct, and equip the
Project and will be entitled to sole and exclusive possession of the Project
subject to the provisions of this Agreement.
Section
4.5. Maintenance of
Project. The Company will use its commercial reasonable
efforts to maintain, preserve and keep the Project and the Building or cause the
Project and the Building to be maintained, preserved and kept, with the
appurtenances and every part and parcel thereof, in good repair, working order
and condition and will from time to time make or cause to be made all necessary
and proper repairs, replacements and renewals.
Section
4.6. Taxes and Assessments; Tax
Indemnity. The Company shall:
(a) file all
tax returns and appropriate schedules thereto that are required to be filed
under applicable law, prior to the date of delinquency;
11
(b) pay and
discharge all taxes, assessments and governmental charges or levies imposed upon
the Company, upon its income and profits or upon any properties belonging to it,
prior to the date on which penalties attach thereto; and
(c) pay all
taxes, assessments and governmental charges or levies that, if unpaid, might
become a Lien upon any of its properties; provided, however, that the Company in
good faith may contest any such tax, assessment, governmental charge or levy
described in the foregoing clauses (b) and (c) so long as appropriate reserves
are maintained with respect thereto. If any tax is or may be imposed by any
governmental entity in respect of sales of the Company's inventory or the
payment of compensation to the Company's employees, or as a result of any other
transaction of the Company, which tax the Issuer is or may be required to
withhold or pay, the Company agrees to indemnify and hold harmless the Issuer in
connection with such taxes (including penalties and interest), and the Company
shall immediately reimburse the Issuer for any such amounts paid by the
Issuer.
Section
4.7. Operation of
Project. The Company agrees that so long as any of the Bonds
are Outstanding it will maintain the Project as an eligible company in
accordance with the Act, unless the Project is sold pursuant to Section 6.1
hereof.
Section
4.8. Payment of
Expenses. The Company will pay, or cause to be paid, in
addition to the payments provided for in Sections 4.2 and 4.3 hereof, all of the
expenses of operation of the Project, including, without limitation, the cost of
all necessary and proper repairs, replacements and renewals made pursuant to
Section 4.5 hereof and any and all taxes and assessments payable pursuant to
Section 4.6 hereof.
Section
4.9. Payments Continue Upon Destruction of
Project. It is understood and agreed that the payments under
Section 4.2 hereof and on the Note and other charges payable hereunder shall
continue to be payable at the time and in the amounts herein specified, whether
or not the Project, or any portion thereof, shall have been condemned or taken
by eminent domain or destroyed, wholly or partially, by fire or other casualty,
and that there shall be no abatement or diminution of any such payments and
other charges by reason thereof.
Section
4.10. Payment of Initial Administrative
Fee. Concurrently with the sale and delivery by the Issuer of
the Bonds, the Company shall pay to the Issuer an Initial Administrative Fee in
the amount of $70,000.
Section
4.11. Release and Indemnification of the
Issuer. The Company hereby releases the Issuer from, and
agrees that the Issuer and its respective officers, directors, members,
employees, attorneys, and agents shall not be liable for, and agrees to defend,
indemnify and hold the Issuer and its respective officers, directors, members,
employees, attorneys, and agents harmless against:
(a) any
liability, cost or expense in the administration of this Agreement and the
obligations imposed on the Issuer thereby and hereby;
(b) any or
all liability or loss, cost or expense, including reasonable attorneys' fees,
resulting from or arising out of any loss or damage to property or any injury to
or death of any person occurring on or about the Project Site or resulting from
any defect in the fixtures, machinery, equipment or other property located on
the Project Site or arising out of, pertaining to, or having any connection with
the Project or the financing thereof (whether or not arising out of acts,
omissions or negligence of the Company);
(c) any or
all liability or loss, cost or expense, including attorneys' fees, arising out
of or in connection with, or pertaining to the issuance, sale or delivery of the
Bonds, including, but not limited to, liabilities arising under the Securities
Act of 1933, the Securities Exchange Act of 1934 or any applicable state
securities laws; and
12
(d) any and
all claims, damages, judgments, penalties, costs, and expenses (including
attorneys' fees and court costs now or hereafter arising from the aforesaid
enforcement of this paragraph), in connection with the Project, arising directly
or indirectly from (i) the activities of the Company and its predecessors in
interest, (ii) third parties with whom it has a contractual relationship, or
(iii) the violation of any environmental protection, health, or safety law,
whether any such claims are asserted by any Governmental Authority or any other
Person which indemnity shall survive the termination of this
Agreement.
The
indemnity specified in this Section 4.11 shall not be effective to relieve the
Issuer or its respective officers, directors, members, employees, attorneys and
agents from damages that result from negligence or intentional misconduct on the
part of the Issuer. This indemnification covenant shall survive the termination
of this Agreement with respect to liability arising out of any event or act
occurring prior to such termination.
The
provisions of this Section 4.11 shall also apply in favor of the Trustee, except
to the extent that any liability, loss, cost or expense on the part of the
Trustee results from the Trustee's own intentional misconduct or
negligence.
Section
4.12. Insurance. The
Company shall maintain insurance with responsible insurance companies on such of
its properties, in such amounts and against such risks as is customarily
maintained by similar business operating in the same vicinity.
ARTICLE
V.
SPECIAL
COVENANTS
Section
5.1. No Warranty as to Suitability of
Project by the Issuer. The Issuer makes no warranty, either
express or implied, as to the actual or designed capacity of the Project, as to
the suitability of the Project for the purposes specified in this Agreement, as
to the condition of the Project, or that the Project will be suitable for the
Company's purposes or needs.
Section
5.2. Continuation of Existence of
Company. The Company covenants
that it will maintain its existence in its present form, will obtain, maintain
and keep in full force and effect all governmental approvals, consents, permits
and licenses as may be necessary for continued use of the Project, will not
dissolve or otherwise dispose of all or substantially all its assets and will
not consolidate with or merge into another Person or permit one or more other
Persons (other than a subsidiary) to consolidate with or merge into it without
first obtaining the prior written consent of the Purchaser and the Issuer. If
written approval of the Purchaser and the Issuer is obtained, upon any
consolidation or merger, or any conveyance or, transfer of the assets of the
Company substantially as an entirety in accordance with this Section 5.2, the
successor formed by such consolidation or into which the Company is merged or to
which such conveyance or transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Agreement
with the same effect as if such successor had been named as the Company
herein.
In the
event of any such conveyance or transfer, the Company as the predecessor person
may be dissolved, wound up and liquidated (if applicable) at any time
thereafter.
If a
consolidation, merger or sale or other transfer is made as permitted by this
Section 5.2, the provisions of this Section 5.2 shall continue in full force and
effect and no further consolidation, merger or sale or other transfer shall be
made except in compliance with the provisions of this Section 5.2 and Section
6.1 hereof.
13
Section
5.3. [Reserved].
Section
5.4. Agreement to
Cooperate. In the event it may be necessary for the proper
performance of this Agreement, or for the exercise of any rights hereunder, on
the part of the Issuer or the Company that any application or applications for
any permit or license or authorization to do or to perform certain things be
made to any governmental or other agency by the Company or the Issuer, or both,
the Company and the Issuer each agree to execute and prosecute upon the request
of the other such application or applications.
Section
5.5. Qualification in
Mississippi. Subject to Section 5.2 hereof, the Company
warrants that it is and throughout the term of this Agreement will continue to
be duly qualified to do business in the State.
Section
5.6. Affiliated Companies. The Issuer acknowledges
that the Company and the Purchaser are affiliated companies and that both the
Company and the Purchaser have all the requisite limited partnership power and
authority and all necessary authorizations, approvals, consents, orders,
licenses, certificates and permits of and from all governmental or regulatory
bodies or any other person or entity, including any and all licenses, permits
and approvals required under any foreign, federal, state or local law to own,
lease and license its assets and properties and to conduct its
business. Additionally, the Issuer acknowledges that neither the
Company nor the Purchaser have any reason to believe that (i) any governmental
or regulatory body is considering modifying, limiting, conditioning, suspending,
revoking or not renewing any such authorizations, approvals, consents, orders,
licenses, certificates or permits of the Company or the Purchaser (other than
immaterial modifications, limitations and conditions arising in connection with
licensing) or that (ii) governmental or regulatory bodies are
investigating the Company or the Purchaser. In the event that any
such governmental or regulatory body determines or orders that the Company and
the Purchaser may not continue to do business with each other, the Company may
terminate this Agreement with the written consent of the Issuer and provided
that all payments under Section 4.2 of this Agreement are provided for and the
requirements for redemption of the Bonds pursuant to Article VIII of the
Indenture are complied with.
Section
5.7. Maintenance. The
Company will maintain all of its tangible property used in connection with its
business in good condition and repair and make all necessary replacements
thereof, and preserve and maintain all licenses, trademarks, privileges,
permits, franchises, certificates and the like necessary for the operation of
its business.
Section
5.8. Environmental Law
Compliance. The conduct of the Company's business operations
do not and will not violate any federal laws, rules or ordinances for
environmental protection, regulations of the Environmental Protection Agency and
any applicable local or state law, rule, regulation or rule of common law and
any judicial interpretation thereof relating primarily to the environment or
hazardous materials and the Company will not use or permit any other party to
use any hazardous materials at any of the Company's places of business or at any
other property owned by the Company except such materials as are incidental to
the Company's normal course of business, maintenance and repairs and which are
handled in compliance with all applicable environmental laws. On or after the
occurrence of (i) the Issuer obtaining a Lien on additional assets of the
Company, or (ii) a default under any of the Loan Documents, the Company agrees
to permit the Issuer, its agents, contractors and employees to enter and inspect
any of the Company's places of business or any other property of the Company at
any reasonable times upon three (3) days prior notice for the purposes of
conducting an environmental investigation and audit (including taking physical
samples) to insure that the Company is complying with this covenant and the
Company shall reimburse the Issuer on demand for the costs of any such
environmental investigation and audit. The Company shall provide the Issuer, its
agents, contractors, employees and representatives with access to and copies of
any and all data and documents relating to or dealing with any hazardous
materials used, generated, manufactured, stored or disposed of by Company's
business operations within five (5) days of the request therefore.
14
Section
5.9. [Reserved].
Section
5.10. [Reserved].
Section
5.11. Maintenance of Books and Records;
Inspection. The Company shall maintain its books, accounts and
records in accordance with the generally accepted accounting principles and
permit the Issuer, the Purchaser or the Trustee, their officers and employees
and any professionals designated by the Issuer, the Purchaser or the Trustee in
writing, at any time during regular business hours, to visit and inspect any of
its properties (including but not limited to the collateral security described
in the Loan Documents), limited partnership books and financial records, and to
discuss its accounts, affairs and finances with any employee, officer, director,
or equityholder of the Company. Unless written notice of another location is
given to the Issuer, the Purchaser or the Trustee, the Company's books and
records will be located at Company's chief executive office set forth
hereinbelow.
Section
5.12. Affirmative
Covenants. Until full payment and performance of all
obligations of the Company under the Loan Documents, the Company agrees to
comply with the following covenants, unless the Purchaser consents otherwise in
writing (and without limiting any requirement of any other Loan
Document):
(a) [Reserved];
(b) [Reserved];
(c) The
Company shall pay promptly to Purchaser upon demand, reasonable attorney's fees
(including but not limited to the reasonable estimate of the allocated costs and
expenses of in-house legal counsel and legal staff) and all costs and other
expenses paid or incurred by Purchaser in collecting, modifying or compromising
this Agreement or in enforcing or exercising its rights or remedies created by,
connected with or provided for in this Agreement or any of the Loan Documents,
whether or not an arbitration, judicial action or other proceeding is commenced.
If such proceeding is commenced, only the prevailing party shall be entitled to
attorneys' fees and court costs;
(d) The
Company shall promptly, upon demand by Purchaser, take such further action and
execute all such additional documents and instruments in connection with this
Agreement as Purchaser in its reasonable discretion deems necessary, and
promptly supply Purchaser with such other information concerning its affairs as
Purchaser may request from time to time; and
(e) The
Company shall pay or reimburse Purchaser for all costs, expenses and fees
incurred by Purchaser in preparing and documenting this Agreement and the Loan
Documents, and all amendments and modifications thereof, including but not
limited to all filing and recording fees, costs of appraisals, insurance and
attorneys' fees.
Section
5.13. [Reserved].
Section
5.14. County and City Approval of Ad
Valorem Tax Exemptions. The Company hereby agrees that the
Project shall not be exempt from ad valorem taxation unless and until the
Company seeks to and obtains the approval of the appropriate local taxing
authorities (county and city governing bodies), to grant ad valorem tax
exemptions for each such Project.
15
ARTICLE
VI.
ASSIGNMENT,
LEASE AND SALE OF PROJECT
Section
6.1. Disposal of Project and Assets by
Company. The Company will not sell, lease or otherwise dispose
of or encumber its interest in the Project, except for transactions permitted
pursuant to Section 5.2 hereof and this Section 6.1, without the prior written
consent of the Issuer and the Purchaser, and with written notice to the Trustee.
Upon prior written consent of the Issuer and the Purchaser, this Agreement may
be assigned in whole or in part, and the interest of the Company in the Project
may be sold or leased as a whole or in part by the Company, provided, however,
that such assignee, vendee or lessee shall, in writing, specifically assume the
obligations and affirm in its own capacity the representations, warranties and
covenants made by the Company in this Agreement, subject, however, to the
following conditions:
(a) No sale,
assignment or leasing of the Project (other than pursuant to Section 5.2
hereof), shall relieve the Company from liability for any of its obligations
hereunder, and in the event of any such sale, assignment or leasing the Company
shall continue to remain primarily liable for the payments specified in Section
4.2 and Section 4.3 hereof and for performance and observance of the other
agreements on its part herein provided, unless otherwise approved by the Issuer
and the Purchaser, in writing, in which case such vendee, assignee or lessee
shall assume the obligations of the Company hereunder and shall become liable
for the payments specified in Section 4.2 and Section 4.3 hereof and for
performance and observance of the other agreements of the Company herein
provided as to which the Company shall no longer be liable.
(b) The
Company shall, no later than ten (10) days prior to the effective date thereof,
furnish or cause to be furnished to the Issuer, the Purchaser and the Trustee a
copy of each such proposed sale agreement, assignment and lease, as the case may
be.
(c) The
Company shall, ten (10) days after the delivery thereof, furnish or cause to be
furnished to the Issuer, the Purchaser and the Trustee, a true and complete copy
of each such sale agreement, assignment and lease, as the case may be, and
before the execution thereof furnish the form thereof to the
Issuer.
(d) There
shall be delivered to the Issuer, the Purchaser and the Trustee a Bond Counsel's
Opinion, addressed to the Issuer and the Trustee, to the effect that such sale,
assignment or leasing is not prohibited by the Act.
ARTICLE
VII.
EVENTS
OF DEFAULT AND REMEDIES
Section
7.1. Default. Any of the
following events shall constitute a "default" or "event of default" under this
Agreement:
(a) the
failure to pay any obligation, liability or indebtedness of the Company (i) to
the Purchaser, or (ii) to the Issuer or the Trustee under any of the Loan
Documents, as and when due (whether upon demand, at maturity or by acceleration)
and such failure to pay is not cured within five (5) days thereof;
or
(b) the
failure to pay or perform any other obligation, liability or indebtedness of the
Company to the Purchaser under the Loan Documents, and such failure to pay a
monetary obligation is not cured within ten (10) days thereof, or the failure to
perform any other obligation is not cured within thirty (30) days following
written notice to the Company by the Purchaser;
(c) any
default by the Company under any Loan Documents, subject to any cure period
applicable
(d) the
filing or commencement of a proceeding by the Company for dissolution or
liquidation, or the Company's voluntary termination or dissolution;
16
(e) insolvency
of, business failure of, the appointment of a custodian, trustee, liquidator or
receiver of or for any of the property of, and any assignment for the benefit of
creditors by, or the filing of a petition under bankruptcy, insolvency, debtor's
relief law or for any adjustment of indebtedness, composition or extension by
the company; or
(f) the
commencement of an involuntary case or other proceeding against the Company
under the federal bankruptcy laws, or any other federal or state bankruptcy,
insolvency or other similar law in the United States or seeking the appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestration (or
similar official) of the Company, or seeking the winding-up or liquidation of
its affairs and the continuation of any such case or other proceeding
undismissed and unstayed for a period of ninety (90) consecutive days, or an
order, judgment or decree shall be entered in any proceeding by any court of
competent jurisdiction appointing, without the consent of the Company, a
receiver, trustees or liquidator of the Company and any
such order, judgment or decree or appointment shall be final or shall remain in
force undismissed, unstayed or unvacated for a period of ninety (90) days after
entry thereof; or
(g) any
representation or warranty made by the Company in any Loan Documents or
otherwise to the Purchaser was untrue or materially misleading when
made.
Section
7.2. Remedies Upon
Default. Whenever any Event of Default referred to in Section
7.1 hereof shall have occurred and be continuing, any one or more of the
following remedial steps may be taken; provided that written notice of the
default has been given to the Company by the Issuer, the Purchaser or the
Trustee and the default has not theretofore been cured; and provided further
that no remedial steps shall be taken by the Issuer the effect of which would be
to entitle the Issuer to provide funds necessary for the payment of principal
and interest on Bonds which have not yet matured unless such principal and
interest shall have been declared due and payable in accordance with the
Indenture and such declaration shall not have been rescinded.
In the
event of any default under this Agreement, the Issuer may and upon written
request of the Purchaser shall:
(a) declare
all amounts due under any of the Loan Documents, at the option of the Purchaser,
immediately due and payable, and/or
(b) exercise
all other rights, powers and remedies available under each of the Loan Documents
and well as all rights and remedies available at law or in equity.
Section
7.3. No Remedy
Exclusive. The failure at any time of the Issuer, Trustee or
Purchaser to exercise any of its options or any other rights hereunder shall not
constitute a waiver thereof, nor shall it be a bar to the exercise of any of its
options or rights at a later date. All rights and remedies of the Issuer shall
be cumulative and may be pursued singly, successively or together, at the option
of the Issuer. The acceptance by the Issuer of any partial payment shall not
constitute a waiver of any default or of any of Issuer's rights under this Note.
No waiver of any of its rights hereunder and no modification or amendment of
this Agreement or the Note shall be deemed to be made by the Issuer unless the
same is in writing, duly signed on behalf of the Purchaser; and each such waiver
shall apply only with respect to the specific instance involved, and shall in no
way impair the rights of the Purchaser or the obligations of the Company to the
Purchaser or the Issuer in any other respect at any such time.
Section
7.4. Payment of Fees and
Expenses. If the Company shall default under any of the
provisions of this Agreement and the Issuer or the Trustee shall employ
attorneys or incur other expenses for the collection of the Loan payments or for
the enforcement of performance or observance of any obligation or agreement on
the part of the Company contained in this Agreement, the Company will on
demand therefor pay the reasonable fees and expenses of the Issuer, the
Purchaser or the Trustee and their attorneys as they are incurred including all
reasonable fees of counsel including those incurred for negotiation, trial,
appeals of ruling of any lower tribunals, administrative hearings, bankruptcy
and creditors' reorganization proceedings.
17
Section
7.5. Effect of
Waiver. The Trustee, after having first received the prior
written approval of the Purchaser, may waive any Event of Default under this
Agreement. In the event any agreement contained in this Agreement shall be
breached and such breach shall thereafter be waived, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any
other breach hereunder.
ARTICLE
VIII.
PREPAYMENT
OF LOAN
Section
8.1. Obligations to Accelerate Loan
Payments. In the event the Company makes provision for payment
of all loan payments and any other amounts payable pursuant to the Loan
Documents in accordance with Article VIII of the Indenture, following written
notification thereof to the Issuer, the Purchaser and the Trustee, the total
amount due, under this Agreement and the Note, will be a sum, payable in cash
and/or Government Obligations, sufficient, together with interest earned on such
Government Obligations and other funds held by the Trustee and available for
such purpose, (a) to redeem at the earliest redemption date or dates provided in
the Indenture all Bonds then outstanding under the Indenture at a Redemption
Price equal to the principal amount thereof, (b) to pay in accordance with the
Indenture the interest which will become due on all such Bonds to the date fixed
for redemption, (c) to pay all Administration Expenses accrued and to accrue
through the date fixed for redemption and (d) pay any other fees owed to the
Purchaser and the Trustee. Furthermore, loan payments and amounts due under the
Note shall be accelerated prior to the maturity of the Bonds (or prior to making
provision for payment thereof in accordance with the Indenture) if the Bonds
shall be subject to redemption pursuant to Sections 2.3 or 2.4, as the case may
be, of the Indenture. In such case, the total amount due shall be the sums
required pursuant to Sections 2.3 or 2.4, as the case may be, of the Indenture,
on the dates required by Sections 2.3 or 2.4, as the case may be, of the
Indenture and any amounts owed pursuant to (c) and (d) above.
ARTICLE
IX.
MISCELLANEOUS
Section
9.1. Notices. All
notices, certificates, requests or other communications hereunder shall be
sufficiently given and shall be deemed given when received by overnight
delivery; or when personally delivered, addressed as follows:
If to the
Issuer: Mississippi
Business Finance Corporation
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
If to the
Trustee: ▇▇▇▇▇▇▇
Bank
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone
Number: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile
Number: ▇▇▇-▇▇▇-▇▇▇▇
18
If to the
Company: Gulf
South Pipeline Company, LP
Attention:
Mr. ▇▇▇▇▇ ▇▇▇▇▇
▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Phone
▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
If to the
Purchaser: Boardwalk
Pipelines, LP
Attention:
Mr. ▇▇▇▇▇ ▇▇▇▇▇
▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Phone
▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
A
duplicate copy of each notice, certificate, request or other communication given
hereunder to the Issuer, the Company, the Trustee or the Purchaser shall also be
given to the others. The Company, the Issuer, the Trustee or the Purchaser may,
by notice given under Section 9.1, designate any further or different addresses
to which subsequent notices, certificates, requests or other communications
shall be sent.
Section
9.2. Parties
Interested. This Agreement shall inure to the benefit of the
Issuer and the Company and shall be binding upon the Issuer, the Company and
their respective successors and assigns, subject to the limitation that any
obligation or liability of the Issuer created by or arising out of this
Agreement shall not be a general debt of the Issuer or the State, but shall be
payable by the Issuer solely out of the proceeds derived from this Agreement
(including proceeds under the Note) or from the security interests granted
herein.
No
covenant, stipulation, obligation or agreement contained in this Agreement shall
be deemed or construed to be a covenant, stipulation, obligation or agreement of
any present or future member, agent, employee or official of the Issuer in his
individual capacity, and no present or future member, agent, employee or
official of the Issuer shall be liable personally, for any breach or
non-observance or failure to comply with the above mentioned covenants,
stipulations, obligations, or on the Bonds or be subject to any personal
liability or accountability by reason of the issuance thereof or by reason of
the said covenants, stipulations, obligations or agreements, above mentioned. No
present or future member, agent, employee or official of the Issuer shall incur
any personal liability in acting or proceeding or in not acting or proceeding,
in good faith, reasonably, under the provisions of this Agreement. If in or by
or as a result of the execution of this Agreement or any other document in
connection with this transaction or any other related transaction, the Issuer or
any member, agent, employee or official thereof shall become obligated in excess
of or contrary to the provisions of the statutory authority granted by the Act,
then such excess or contrary obligation shall not be binding on or enforceable
against the Issuer or any present or future member, agent, employee or official
thereof.
Section
9.3. Amendment to
Agreement. The Issuer shall not amend nor consent to any
amendment to the Indenture or this Agreement or waive any provision of this
Agreement except as specified in Article XIII of the Indenture, which Article
XIII is incorporated herein by this reference as if it were fully set forth
herein. The Company hereby agrees to be bound by the provisions of
Article XIII of the Indenture.
Section
9.4. Counterparts. This
Agreement may be executed in any number of counterparts, each of which, when so
executed and delivered, shall be an original; but such Counterparts shall
together constitute but one and the same Agreement.
Section
9.5. Severability of Invalid
Provisions. If any clause, provision or section of this
Agreement be held illegal or invalid by any court, the invalidity of such
clause, provision or section shall not affect any of the remaining clauses,
provisions or sections hereof, and this Agreement shall be construed and
enforced as if such illegal or invalid clause, provision or section had not been
contained herein, unless the deletion of illegal or invalid clauses would result
in a material change in the obligations of the parties.
19
Section
9.6. Governing Law. This
Agreement shall be governed as to validity, construction and performance by the
laws of the State.
Section
9.7. No Oral
Agreement. This Agreement and the other Loan Documents
represent the final agreement between the parties and may not be contradicted by
evidence of prior, contemporaneous or subsequent oral agreements of the parties.
There are no oral agreements between the parties with respect to the subject
matter of the Loan Documents.
Section
9.8. Term of
Agreement. This Agreement shall remain in full force and
effect from the date hereof to, including and until midnight (Central time) of
the Final Maturity Date, or until such time as all of the Bonds and the
reasonable fees and expenses of the Issuer and the Trustee and all obligations
of the Company have been fulfilled in accordance with the terms hereof,
whichever is earlier; provided, however, that this Agreement may be terminated
prior to such date pursuant to Article VIII of this Agreement.
[Signature pages to
follow.]
20
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed as of the day and
year first above written on the cover page hereof.
MISSISSIPPI
BUSINESS FINANCE
CORPORATION
__________________________
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, Executive Director
ATTEST:
__________________
▇▇▇▇▇
▇▇▇▇▇▇, Secretary
GULF
SOUTH PIPELINE COMPANY, LP
By:
GS Pipeline Company, LLC
Its:
General Partner
________________________________________________
▇▇▇▇▇
▇▇▇▇▇▇▇, Senior Vice President, Chief Financial Officer and
Treasurer
21
EXHIBIT
A
TO
LOAN
AGREEMENT DATED AS OF DECEMBER 1, 2008
BY
AND BETWEEN
MISSISSIPPI
BUSINESS FINANCE CORPORATION
AND
GULF
SOUTH PIPELINE COMPANY, LP
BUILDING
DESCRIPTIONS
AND
IMPROVEMENTS
The
Project shall consist of the construction of a natural gas pipeline through
Warren, Hinds, Copiah, Simpson, Clarke, Jasper and ▇▇▇▇▇ Counties in
Mississippi, the construction of compressor stations, and other commercial
developments permitted under the Act, the guidelines, rules and regulations of
the Issuer related thereto.
EXHIBIT
B
PROJECT
SITE
EXHIBIT
C
TO
LOAN
AGREEMENT DATED AS OF DECEMBER 1, 2008
BY
AND BETWEEN
MISSISSIPPI
BUSINESS FINANCE CORPORATION
AND
GULF
SOUTH PIPELINE COMPANY, LP
PROMISSORY
NOTE
Date: December
5, 2008 $175,000,000
Maximum Principal Amount
FOR VALUE RECEIVED, Gulf South
Pipeline Company, LP, a limited partnership organized and existing under and
pursuant to the laws of the State of Delaware and in good standing in and
qualified to do business in the State of Mississippi (the "Company"), hereby
promises to pay to the order of Mississippi Business Finance Corporation (the
"Issuer") or its assigns, the maximum principal amount of $175,000,000 together
with interest on the unpaid principal balance thereof at the rates set forth in
the hereinafter defined Loan Agreement and Indenture until fully and finally
paid, and all other amounts payable by the Company under the Loan Agreement (as
hereinafter defined). This Note shall bear interest at the prevailing rate of
interest on the Bonds (as hereinafter defined) except as otherwise provided
hereunder. The final maturity date of the Note shall be the final
maturity date of the Bonds (as hereinafter defined) which is December 1,
2018.
This Note
has been executed under and pursuant to a Loan Agreement dated as of December 1,
2008 between the Issuer and the Company (the "Loan Agreement") and will be
issued and secured by a Loan Agreement which is incorporated herein in its
entirety by reference. This Note is issued to evidence the obligation of the
Company under the Loan Agreement to repay the loan made by the Issuer from the
proceeds of the Mississippi Business Finance Corporation Taxable Industrial
Development Revenue Bonds (Gulf South Pipeline Company, LP Project) (the "
Bonds"), to be issued under the Trust Indenture dated as of December 1, 2008
(the “Indenture”) between the Issuer and ▇▇▇▇▇▇▇ Bank, as Trustee (the
“Trustee”), together with interest thereon at the interest rates as set forth in
the Loan Agreement, the Indenture and the Bonds, and all other payments of any
kind required to be paid by the Company under the Loan Agreement. The Loan
Agreement includes provisions for prepayment and acceleration of this Note. In
the event that the terms of this Note conflict with the terms of the Loan
Agreement, the Indenture and the Bonds, the terms of the Loan Agreement, the
Indenture and the Bonds shall control. The proceeds of the Loan will be advanced
from time to time by the Purchaser (as defined in the Loan Agreement) of the
Bonds and the Trustee and the Purchaser have each agreed to make a suitable
notation on the Grids attached to the Note and the Bonds, of the date and amount
of each such advance, all as provided in the Bond Purchase Agreement (as defined
in the Loan Agreement) and the Indenture. Each advance on the Note shall
constitute an equal and corresponding advance on the Bonds.
As
provided in the Loan Agreement and subject to the provisions thereof, payments
hereon are to be made at the principal office of the Trustee as shown in the
Loan Agreement in an amount which together with other monies available therefor
pursuant to the Loan Agreement, will equal the amount payable as principal of,
premium, if any, and interest on the Bonds Outstanding (as defined in the Loan
Agreement) on such due date. Each payment of principal and interest on this Note
shall constitute an equal and corresponding payment under the Loan Agreement,
the Indenture and the Bonds as applied in accordance with the
Indenture.
The
Company shall make principal payments on this Note in the amounts on the dates
and at the rates of interest, unless paid prior thereto through redemption, all
as set forth in the Loan Agreement (by reference to the Indenture) and in
addition shall make such other payments as are required pursuant to the Loan
Agreement. Upon the occurrence of an Event of Default, as defined in the Loan
Agreement, the principal of, premium, if any, and interest on this Note may be
declared immediately due and payable as provided in the Loan Agreement. Upon any
such declaration the Company shall pay all costs, disbursements, expenses and
reasonable counsel fees of the Issuer and the Trustee in seeking to enforce
their rights under the Loan Agreement and this Note.
D-1
The
Company (a) waives diligence, demand, presentment for payment, notice of
nonpayment, protest and notice of protest, notice of any renewals or extension
of this Note, and (b) agrees that the time for payment of this Note may be
extended at the sole discretion of the Issuer without impairing the Company's
liability hereon. Any delay on the part of the Issuer in exercising
any right hereunder shall not operate as a waiver of any such right, and any
waiver granted with respect to one default shall not operate as a waiver in the
event of any subsequent or continuing default.
This Note
shall be governed and construed in accordance with the laws of the State of
Mississippi.
IN WITNESS WHEREOF, the
undersigned has caused this Note to be executed in its name as of the day and
year first above written.
GULF
SOUTH PIPELINE COMPANY, LP
By:
GS Pipeline Company, LLC
Its:
General Partner
By: ____________________________________
_____________,
_______________
ATTEST:
By: ___________________________
__________________
D-2
ASSIGNMENT
OF PROMISSORY NOTE
FOR VALUE RECEIVED, the
Mississippi Business Finance Corporation hereby assigns and transfers, without
recourse, to ▇▇▇▇▇▇▇ Bank, as Trustee, the Promissory Note executed by Gulf
South Pipeline Company, LP, in favor of Mississippi Business Finance Corporation
in the maximum principal amount of $175,000,000 on this the 5th day of
December, 2008.
MISSISSIPPI
BUSINESS FINANCE
CORPORATION
By: _____________________________________
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, Executive Director
ATTEST:
__________________
▇▇▇▇▇
▇▇▇▇▇▇, Secretary
D-3
EXHIBIT
D
TO
LOAN
AGREEMENT DATED AS OF DECEMBER 1, 2008
BY
AND BETWEEN
MISSISSIPPI
BUSINESS FINANCE CORPORATION
AND
GULF
SOUTH PIPELINE COMPANY, ▇▇
▇▇▇▇
ADVANCE AND PAYMENT GRID
SCHEDULE
OF PRINCIPAL ADVANCES AND
REPAYMENTS
OF PRINCIPAL AND INTEREST
SERIES
2008
Amount
of
Unpaid
Principal
Amount
of Amount
of Principal
Notation
Date
Advanced
Principal
Repaid Interest
Paid Balance
Made
By
__________ ___________ ____________ _____________
___________
__________ ___________ ____________ _____________ ___________
__________ ___________ ____________ _____________ ___________
__________ ___________ ____________ _____________ ___________
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____________ _____________ ____________
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__________ ___________ ____________ _____________
____________
__________ ___________ ____________
_____________
____________
__________ ___________ ____________ _____________ ____________
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__________ ___________ ____________ _____________ ____________
__________ ___________
____________ _____________ ____________
__________ ___________ ____________ _____________ ____________
__________ ___________ ____________ _____________ _____________
__________ ___________ ____________ ______________ _____________
(Continued
on Next Page)
E-1
Amount
of
Unpaid
Principal
Amount
of Amount
of Principal
Notation
Date
Advanced
Principal
Repaid Interest
Paid Balance
Made
By
__________ ___________ ____________ _____________
___________
__________ ___________ ____________ _____________ ___________
__________ ___________ ____________ _____________ ___________
__________ ___________ ____________ _____________ ___________
__________ ___________ ____________ _____________ ___________
__________ ___________ ____________ _____________ ____________
__________ ___________
____________ _____________ ____________
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__________ ___________ ____________ _____________ ____________
__________ ___________ ____________ _____________
____________
__________ ___________ ____________ _____________
____________
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__________ ___________
____________ _____________ ____________
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__________ ___________ ____________ _____________ ____________
__________ ___________ ____________ ______________ ____________
E-2
EXHIBIT
D
TO
LOAN
AGREEMENT DATED AS OF DECEMBER 1, 2008
BY
AND BETWEEN
MISSISSIPPI
BUSINESS FINANCE CORPORATION
AND
GULF
SOUTH PIPELINE COMPANY, LP
FORM OF REQUISITION
CERTIFICATE
TO:
▇▇▇▇▇▇▇ BANK, AS TRUSTEE
|
FROM:
|
GULF
SOUTH PIPELINE COMPANY, LP (THE
“COMPANY”)
|
|
SUBJECT:
|
LOAN
AGREEMENT, DATED THE FIRST DAY OF DECEMBER, 2008 (THE “LOAN
AGREEMENT”)
|
|
|
This
represents Requisition Certificate No. _____ in the total amount of
$__________ for payment of those costs of the Project detailed in the
schedule attached.
|
The undersigned does
certify that:
1. All
of the expenditures for which moneys are requested hereby represent proper Costs
of the Project, is a proper charge against the Project Fund, have not been
included in a previous Requisition Certificate and have been properly recorded
on the Company’s books.
2. The
moneys requested hereby are not greater than those necessary to meet obligations
due and payable or to reimburse the Company for funds actually advanced for
costs of the Project. The moneys requested do not include retention or other
moneys not yet due or earned under construction contracts.
3. The
Company is not in default under Section 7.1 of the Loan Agreement and nothing
has occurred to the knowledge of the Company that would prevent the performance
of its obligations under the Loan Agreement.
4. Delivered
herewith to the Purchaser are all of the documents required by Section 3.4
of the Loan Agreement.
5. Capitalized
terms used and not defined herein shall have the meanings ascribed to them in
the Loan Agreement.
E-3
Executed
this ____ day of ________, _______.
GULF
SOUTH PIPELINE COMPANY,LP
By: ____________________________
Authorized
Officer
Approved
on ____ day of ________, ________.
BOARDWALK
PIPELINES, LP
By: ____________________________
Authorized Officer
SCHEDULE
A TO REQUISITION CERTIFICATE NO ______
|
PAYEE AND ADDRESS
|
AMOUNT
|
|
TOTAL
|
E-4