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Exhibit 4.1 Execution Copy
INDENTURE
BETWEEN
MISSISSIPPI BUSINESS FINANCE CORPORATION
AND
Hancock Bank, As Trustee
Dated as of December 1, 2008
Not to Exceed $175,000,000
In Aggregate Principal Amount
Mississippi Business Finance Corporation Taxable Industrial Development Revenue Bonds (Gulf South Pipeline Company, LP Project)
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS 3 Section 1.1. Definitions 3
ARTICLE II. DESCRIPTION, AUTHORIZATION, MANNER OF EXECUTION, AUTHENTICATION, REGISTRATION AND TRANSFER OF BONDS 8 Section 2.1. Authorization of Bonds 8 Section 2.2. Issuance of Bonds. 8 Section 2.3. Mandatory Redemption 9 Section 2.4. Optional Redemption 9 Section 2.5. Method of Partial Redemption 9 Section 2.6. Bonds Mutilated, Destroyed, Stolen or Lost 9 Section 2.7. Additional Advances of Principal 10 Section 2.8. Execution 10 Section 2.9. Negotiability, Transfer and Registry 11 Section 2.10. Regulations with Respect to Exchanges and Transfers 11 Section 2.11. Authentication 11 Section 2.12. Destruction of Bonds 12
ARTICLE III. AUTHENTICATION AND DELIVERY OF BONDS 12 Section 3.1. Bonds Equally and Ratably Secured 12 Section 3.2. Provisions for Issuance of Bonds 12 Section 3.3. Limited Obligations 13
ARTICLE IV. CONSTRUCTION AND ACQUISITION OF PROJECT 13 Section 4.1. Covenant to Proceed with Reasonable Dispatch; Revision of Plans and Specifications 13 Section 4.2. Covenant to Comply with Laws 13
ARTICLE V. PROJECT FUND 14 Section 5.1. Establishment of Project Fund 14 Section 5.2. Use of Monies 14 Section 5.3. Completion of Project 14 Section 5.4. Completion of Project if Bond Proceeds Insufficient; Surplus Proceeds 15 Section 5.5. Default by Contractor 15 Section 5.6. Investment of Project Fund 15
ARTICLE VI. BOND FUND 15 Section 6.1. Establishment of Bond Fund 15 Section 6.2. Flow of Funds 16
ARTICLE VII. SECURITY FOR AND INVESTMENT OF MONIES 16 Section 7.1. Security 16 Section 7.2. Investments Section 7.3. Transfer of Balance 16
ARTICLE VIII. REDEMPTION OF BONDS 16 Section 8.1. Method of Redemption 17 Section 8.2. Notice of Redemption 17 Section 8.3. Payment of Redeemed Bonds 17
i ARTICLE IX. PARTICULAR COVENANTS OF THE ISSUER 17 Section 9.1. Payment of Bonds 18 Section 9.2. Maintain Its Existence 18 Section 9.3. Payments Under Loan Agreement; No Amendment to Loan Agreement Without Consent 18 Section 9.4. Further Documents 18 Section 9.5. Payment of Taxes and Assessments; Compliance with Regulations; No Creation of Liens or Charges 18 Section 9.6. Extension of Payment of Bonds 18
ARTICLE X. DEFAULTS AND REMEDIES 19 Section 10.1. Events of Default 19 Section 10.2. Right to Declare Bonds Due and Payable 19 Section 10.3. Proceedings by Trustee 19 Section 10.4. Effect of Discontinuance or Abandonment 20 Section 10.5. Rights of Bondholders 20 Section 10.6. Restriction on Bondholder's Action 20 Section 10.7. Power of Trustee to Enforce 21 Section 10.8. Remedies Not Exclusive 21 Section 10.9. Effect of Waiver 21 Section 10.10. Application of Monies 21
ARTICLE XI. CONCERNING THE TRUSTEE 22 Section 11.1. Appointment and Acceptance of Duties 22 Section 11.2. Responsibilities 22 Section 11.3. Powers 22 Section 11.4. Compensation 22 Section 11.5. No Duty to Maintain Insurance 22 Section 11.6. Notice of Event of Default 22 Section 11.7. Action Upon Default 22 Section 11.8. Limitation of Liability 23 Section 11.9. Ownership of Bonds 23 Section 11.10. No Duty to Invest 23 Section 11.11. Construction of Provisions of Indenture 23 Section 11.12. Resignation 23 Section 11.13. Removal 23 Section 11.14. Appointment of Successor Trustee 24 Section 11.15. Successor to be Bank or Trust Company 24 Section 11.16. Failure to Appoint a Successor Trustee 24 Section 11.17. Acceptance by Successor Trustee 24 Section 11.18. Merger or Consolidation 24 Section 11.19. Action Upon Event of Default 25 Section 11.20. Notice of Occurrence of Event of Default 25 Section 11.21. Intervention by Trustee 25 Section 11.22. Appointment and Acceptance of Paying Agents 25 Section 11.23. Resignation or Removal of Paying Agent; Appointment of Successor 25 Section 11.24. Trust Estate May Be Vested in Separate or Co-Trustee 25
ii ARTICLE XII. EXECUTION OF INSTRUMENTS BY BONDHOLDERS AND PROOF OF OWNERSHIP OF BONDS 26 Section 12.1. Execution of Instruments; Proof of Ownership 26
ARTICLE XIII. MODIFICATION OF INDENTURE AND SUPPLEMENTAL INDENTURES 26 Section 13.1. Supplemental Indentures With Consent of the Company, But Without Consent of Bondholders 27 Section 13.2. Trustee Authorized to Enter Supplemental Indenture 27 Section 13.3. Supplemental Indentures With Consent of Bondholders and the Company 27
ARTICLE XIV. MISCELLANEOUS 27 Section 14.1. Dissolution of Issuer 27 Section 14.2. Parties Interested Herein 28 Section 14.3. Severability of Invalid Provisions 28 Section 14.4. No Recourse on Bonds 28 Section 14.5. Notice 28 Section 14.6. Counterparts 29 Section 14.7. Governing Law 29
ARTICLE XV. BOND FORM 29 Section 15.1. Bond Form 29
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THIS INDENTURE , dated as of December 1, 2008, among Mississippi Business Finance Corporation, a public corporation (hereinafter called the "Issuer"), and Hancock Bank, as trustee (the "Trustee").
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 (the "Act") to, among other things, provide and finance economic development projects in the State of Mississippi by, among other things, providing loans and other assistance to eligible companies, and to finance such assistance to eligible companies by the issuance of revenue bonds;
WHEREAS , the Issuer has duly authorized, under the Act, as a project by the Company (as hereinafter defined) the permanent financing of all or a part of the Project (as hereinafter defined);
WHEREAS , the Issuer desires to authorize the issuance of its taxable revenue bonds hereunder, to secure the payment of the principal thereof and the interest and redemption premium, if any, thereon and any other payments required under this Indenture and to assure the performance and observance of the covenants and conditions herein contained in order to provide for the permanent financing, from time to time, of the Project;
WHEREAS , the Issuer has entered into a Loan Agreement dated as of the date hereof (the "Loan Agreement") with the Company (as hereinafter defined) to provide for the permanent financing of the Project with the proceeds of the loan from the Issuer and the repayment of such loan to the Issuer;
WHEREAS , the Issuer has determined to issue and sell up to $175,000,000 maximum aggregate principal amount of Mississippi Business Finance Corporation Taxable Industrial Development Revenue Bonds (Gulf South Pipeline Company, LP Project) (the "Bonds"), the proceeds of which are to be used to pay a portion of the costs of the Project and to pay the necessary expenses incidental to the issuance of the Bonds;
WHEREAS, Boardwalk Pipelines, LP (the "Purchaser") has agreed to purchase the Bonds (as hereinafter defined) with the proceeds of which to be loaned to the Company by the Issuer to finance the Project (as hereafter defined);
WHEREAS , on the date of execution of this Indenture, the Issuer shall issue the Bonds to finance the Project;
WHEREAS , to further secure the Bonds, the Company has authorized, executed and delivered a Note (as defined herein) to the Issuer, which Note the Issuer has assigned to the Trustee;
WHEREAS , the Issuer, at a meeting thereof duly convened and held, has duly authorized the execution and delivery of this Indenture and the issuance hereunder of the Bonds, upon and subject to the terms and conditions hereinafter set forth;
WHEREAS , all acts and things have been done and performed which are necessary to make the Bonds, when executed and issued by the Issuer, authenticated by the Trustee and delivered, the valid and binding legal obligations of the Issuer, in accordance with their terms and to make this Indenture a valid and binding agreement for the security of the Bonds authenticated and delivered under this Indenture;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, THIS INDENTURE WITNESSETH :
That the Issuer, in consideration of the premises, the acceptance by the Trustee of the trusts hereby created, the purchase and acceptance of the Bonds by the Purchaser thereof, and other good and valuable considerations, the receipt of which is hereby acknowledged, and in order to secure the payment of the principal of, redemption premium, if any, and interest on all Bonds outstanding hereunder from time to time, according to their tenor and effect, and such other payments required to be made under this Indenture, and to secure the observance and performance by the Issuer of all the covenants, expressed or implied herein and in the Bonds, does hereby grant, bargain, sell, convey, assign, pledge and grant a security interest unto the Trustee, and unto its successors in the trusts hereunder, and to them and their successors and assigns forever, all right, title and interest of the Issuer in, to and under, subject to the terms and conditions of this Indenture, any and all of the following:
(a) the Loan Agreement, including but not limited to the Issuer's rights to receive the loan payments and other revenues and receipts payable thereunder, and the Issuer's rights to enforce the Loan Agreement, provided, however, that the Issuer hereby reserves its rights under the Loan Agreement to receive notices, the payment of Administration Expenses and indemnification payments, all as provided in the Loan Agreement;
(b) the Note, including, without limitation, all payments to be made by the Company pursuant to the Note;
(c) the proceeds of the Bonds (subject to provisions pertaining to the use thereof set forth herein and in the Loan Agreement);
(d) any and all other property of every kind and nature from time to time hereafter by delivery or by writing of any kind, conveyed, mortgaged, sold, pledged, assigned and transferred, as and for additional security hereunder, by the Issuer or by any other person, firm or entity in its behalf or with its written consent to the Trustee, and the Trustee is hereby authorized to receive any and all such property at any and all times and to hold and apply the same subject to the terms hereof provided, however, the Trustee consents in writing to the acceptance of such additional security;
(e) any income received by the Trustee from the investment of the proceeds of the Bonds and other funds held by the Trustee hereunder (subject to provisions pertaining to the use thereof set forth herein and in the Loan Agreement); and
(f) the proceeds of any of the foregoing;
TO HAVE AND TO HOLD all the same hereby pledged, conveyed and assigned, or agreed or intended so to be, to the Trustee and its successors in said trust and to it and its assigns forever; PROVIDED, HOWEVER , that if the Issuer, its successors or assigns, shall well and truly pay, or cause to be paid, the principal of the Bonds issued and secured hereunder and the interest due or to become due thereon, at the times and in the manner mentioned in such Bonds, according to the true intent and meaning thereof, and shall well and truly keep, perform and observe all the covenants and conditions pursuant to the terms of this Indenture to be kept, performed and observed by it, and shall pay or cause to be paid to the Trustee all sums of money due or to become due to it in accordance with the terms and provisions hereof, then upon such final payments this Indenture and the unvested rights hereby granted shall cease and terminate, otherwise this Indenture to be and remain in full force and effect;
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THIS INDENTURE FURTHER WITNESSETH that, and it is expressly declared, all Bonds issued and secured hereunder are to be issued, authenticated and delivered and all the rights and property hereby pledged are to be dealt with and disposed of under, upon and subject to the terms, conditions, stipulations, covenants, agreements, trusts, uses and purposes as hereinafter expressed, and the Issuer has agreed and covenanted, and does hereby agree and covenant, with the Trustee and with the respective holders and owners, from time to time, of the said Bonds, as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. Definitions . The terms set forth below shall have the following meanings in this Indenture, 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.
"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 the Loan Agreement or this Indenture, including the Initial Administrative Fee, and the compensation and expenses paid to or incurred by the Trustee or any Paying Agent under this Indenture.
"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 the 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.
"Bond Counsel" shall mean Butler, Snow, O’Mara, Stevens & Cannada, 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.
"Bondholder" or "holder of the Bonds" or "holder" shall mean the Registered Owner(s) of any fully registered Bonds.
"Bonds" or "Bond" shall mean the Bonds in an aggregate amount not exceeding $175,000,000.
"Bond Fund" shall mean the fund established pursuant to Section 6.1 of this Indenture.
"Bond Purchase Agreement" shall mean the Bond Purchase Agreement dated as of December 1, 2008, among the Issuer, the Company and the Purchaser.
"Building" or "Buildings" shall mean the buildings and improvements generally described on Exhibit A to the Loan Agreement constructed in part through a loan of the proceeds of the Bonds and located on the Project Site, as described in Exhibit B to the Loan Agreement, and all additions, modifications and improvements thereto, as they may at any time exist.
3 "Business Day" shall mean any day, other than a Saturday or Sunday or other day, on which the Purchaser, Trustee or the Company is not required or authorized by law to remain closed.
"Closing Date" shall mean December 5, 2008.
"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 the Loan Agreement and shall also mean, unless the context otherwise requires, and any assignee of this Indenture as permitted by Section 6.1 of the Loan Agreement.
"Completion Date" shall mean, with respect to the Bonds, the date of completion of the Project, as that date shall be certified pursuant to Section 5.3 of this 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 to 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 Indenture; (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 at or on the Project Site in substitution thereof or in addition thereto pursuant to the provisions of this Indenture, 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 10.1 of this Indenture.
4 "Executive Director" shall mean the Executive Director of the Mississippi Business Finance Corporation as is duly appointed by the Board of Directors of the Mississippi Business Finance Corporation.
“Final Maturity Date” shall mean December 1, 2018.
"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 this 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 which fee is required to be paid by the Company to the Issuer pursuant to the Loan Agreement.
"Interest Payment Date" shall mean, beginning on June 1, 2009, each June 1 and December 1 until the principal hereof is paid or duly provided for upon redemption or maturity of the Bonds.
"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 $175,000,000, 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-1 or P-2 by Moody's 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 $175,000,000 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 Moody's Investors Service, Inc. comprised of the investments of the type described in paragraph (b); and
5 (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 Agreement" shall mean the Loan Agreement between the Company and the Issuer dated as of December 1, 2008, as amended or supplemented from time to time in accordance with the terms hereof.
"Loan Documents" shall mean the Loan Agreement, this Indenture, the Bond Purchase Agreement, the Note, the Bond, the Assignment of the Loan 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 Indenture, the Bonds, the Bond Purchase Agreement, and the Loan Agreement.
"Loan Payments" shall mean the payments required to be made by the Company pursuant to Section 4.2 of the Loan Agreement.
"Mississippi Expansion Project" shall mean the construction of a natural gas pipeline through Warren, Hinds, Copiah and Simpson 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 of the Loan Agreement, the form of which is attached thereto 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 this Indenture except:
(a) Bonds canceled or surrendered to the Trustee for cancellation pursuant to Section 2.12 of this Indenture prior to such date;
(b) Bonds in lieu of or in substitution for which other Bonds shall have been authenticated and delivered pursuant to this 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 of a requisite aggregate principal amount of Bonds outstanding have concurred in any request, demand, authorization, direction, notice, consent or waiver under this 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.
6 "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 this Indenture.
"Project Site" shall mean the real property described in Exhibit B attached to the Loan Agreement on which the Building(s) and Equipment acquired, expanded, and installed with the proceeds of the Bonds are or will be situated, which property is owned by the Company.
"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 the Loan Agreement (except payment of Administration Expenses and indemnification payments pursuant to Sections 4.2 and 4.11, respectively, of the Loan Agreement) and any other payments, receipts and revenues derived by the Issuer from the Company under the Loan Agreement.
"Southeast Expansion Project" shall mean the construction of a natural gas pipeline through Simpson, Clarke, Jasper and Smith Counties in Mississippi.
"State" shall mean the State of Mississippi.
"Trustee" shall have the meaning set forth in this Indenture.
[Remainder of Page Intentionally Left Blank.]
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ARTICLE II.
DESCRIPTION, AUTHORIZATION, MANNER OF EXECUTION, AUTHENTICATION, REGISTRATION AND TRANSFER OF BONDS
Section 2.1. Authorization of Bonds . No Bonds may be issued under the provisions of this Indenture except in accordance with this Article and shall be limited to the maximum, aggregate principal amount not to exceed $175,000,000. Bonds shall be issued upon written notice by the Company to the Trustee, the Purchaser and the Issuer, requesting an advance of the proceeds of the Bonds, so as to fund the Project, to the extent the aggregate amount of such advance does not exceed $175,000,000. The proceeds of the Bonds shall be advanced from time to time by the Purchaser upon receipt by the Purchaser (with a copy to the Trustee) of a Notice of Borrowing in the form of Exhibit A attached to the Bond Purchase Agreement, duly executed on behalf of the Company, as provided in the Bond Purchase Agreement and subject to the satisfaction of all conditions set forth therein as determined by the Purchaser. Any such Notice of Borrowing shall be treated as an order from the Issuer to authorize the advance under the Bonds initially issued and delivered and as irrevocable, unless the Trustee, the Issuer and the Purchaser shall consent in writing to any revocation thereof. No further action shall be required by the Issuer in order to authorize any such advance. The Trustee shall make a notation on the Grid attached to the Note of the date and amount of each such advance and each payment of principal and interest on the Bonds and the Purchaser has agreed in the Bond Purchase Agreement to make a similar notation on the Grid attached to the Bond. The principal amount outstanding under this Indenture shall be determined by records maintained by the Trustee and the Purchaser.
Each Notice of Borrowing submitted by the Company to the Purchaser requesting an advance of the proceeds of the Bonds shall be deemed a request hereunder for an advance of the proceeds of the loan under the Loan Agreement.
Except as otherwise approved by the Issuer, no Bonds shall be issued under the provisions of this Indenture with a dated date of Bonds on or after December 1, 2011.
Section 2.2. Issuance of Bonds.
(a) Designation of and Maximum Principal Amount of Bonds. The Bonds shall be designated "Mississippi Business Finance Corporation Taxable Industrial Development Revenue Bonds, (Gulf South Pipeline Company, LP Project)" and, shall be issued under and secured by this Indenture in the maximum aggregate principal amount of up to $175,000,000 and shall be issued and sold at the direction of the Company as provided for in Section 2.1 hereof; provided, however, that the principal amount of the Bonds, up to the maximum principal amount, may be advanced to the Issuer periodically by the Purchaser, upon the Company's request to the Purchaser with notice of such request to the Trustee, as provided in Sections 2.1 and 2.7 of this Indenture and in the Bond Purchase Agreement. The principal amount of the Bonds Outstanding at any time shall be determined by the records maintained by the Trustee and the Purchaser pursuant to this Indenture. The Bonds shall be dated the date of the issuance and delivery thereof and shall mature (subject to prior redemption at the prices and dates and upon the terms and conditions hereinafter set forth) as set forth below, shall be numbered R-1 and initially shall be issued in the form of one (1) typewritten bond. The initial advance of the Bonds shall bear interest from the date of such advance. Except as hereinafter provided, the principal of and interest due on any Bonds shall be paid to the Registered Owner of such Bonds as shown on the registration books kept by the Bond Registrar.
8 (b) Maturity, Interest Rate, and Payment. The Bonds shall be dated the date of delivery thereof and shall bear an interest rate equal to seven percent (7%) per annum.
Interest accrued on the Bonds shall be paid on each Interest Payment Date. The outstanding principal shall be due and payable on the Final Maturity Date of the respective Bond which shall be designated by the Executive Director or other officer of the Issuer and approved by the Company. All Bonds shall mature no later than December 1, 2018. Bonds may be prepaid in whole or in part without penalty, upon written notice to the Trustee, the Issuer, and the Purchaser as provided in Section 2.4 of this Indenture.
Interest shall be computed as if a calendar year consisted of three hundred sixty-five (365) days and charged on a daily basis.
All payments of principal of and interest on the Bonds shall be payable in any coin or currency of the United States of America which, at the time of payment is legal tender for the payment of public and private debts and shall be made to the Registered Owner(s) thereof by check delivered and received on the Payment Date or by bank wire or bank transfer as such Registered Owner(s) may specify or otherwise as the Trustee and such Registered Owner(s) may agree.
On or after the date of execution and delivery of this Indenture, the Issuer shall issue the Bonds hereunder the proceeds of which to be used to finance the Project.
Section 2.3. Mandatory Redemption. The Bonds shall be subject to mandatory redemption prior to maturity in accordance with the provisions of Article VIII hereof upon direction of the Issuer, without premium or penalty, upon payment in each case of an amount equal to the principal amount of the Bonds to be redeemed, together with interest accrued on such principal amount to such date, in whole or in part, at any time, (i) in case of damage or destruction to, or condemnation of the Project if the Company has determined to prepay a similar portion of the Note pursuant to the Loan Agreement or (ii) in the event and to the extent that there remains surplus funds in the Project Fund upon the Completion Date as provided in Section 3.7 of the Loan Agreement.
Section 2.4. Optional Redemption . The Bonds are also subject to redemption and prepayment by the Issuer without premium or penalty at the written request of the Company, such request to be provided to the Trustee and the Issuer no less than fifteen (15) days, or such lesser period of time as shall be acceptable to the Purchaser and the Trustee, prior to the redemption date, in whole or in part, upon the Trustee's providing notice of redemption in accordance with Section 8.2 hereof. Notwithstanding anything under this Section 2.4 to the contrary, the Bonds issued hereunder shall not be subject to optional redemption hereunder earlier than one (1) year following the first date on which any portion of the Bonds is sold to the Purchaser; except that if the Company redeems or prepays any portion of the Bonds prior to such one (1) year period, the Company shall be responsible to the State of Mississippi and/or the appropriate local taxing authorities in Mississippi for all taxes owed but otherwise exempt from taxation under Section 57-10-255 of the Act.
Section 2.5. Method of Partial Redemption. All redemptions and prepayments made by the Company are to be applied first in reduction of interest then due at the rate stated herein, and any amount remaining after such payment of said interest shall be applied in reduction of principal in the order of maturity, or in such other order as the Purchaser shall determine in its sole discretion.
Section 2.6. Bonds Mutilated, Destroyed, Stolen or Lost. In the event any Outstanding Bond, whether temporary or definitive, is mutilated, lost, stolen or destroyed, the Issuer may execute, and upon its request in writing, the Trustee shall authenticate and deliver, a new Bond of the same Series, principal amount and maturity and of like tenor as the mutilated, lost, stolen or destroyed Bond in exchange and substitution for such mutilated Bond, or in lieu of and substitution for such lost, stolen or destroyed Bond.
9 Application for exchange and substitution of mutilated, lost, stolen or destroyed Bonds shall be made to the Trustee at its Corporate Trust Office or at such other office as designated by the Trustee. In every case the applicant for a substitute Bond shall furnish to the Issuer and to the Trustee such security or indemnity as may be required by them to save each of them and any Paying Agent harmless. In every case of loss, theft or destruction of a Bond, the applicant shall also furnish to the Issuer and to the Trustee evidence to their reasonable satisfaction of the loss, theft or destruction and of the ownership of such Bond, and in every case of mutilation of a Bond, the applicant shall surrender the Bond so mutilated.
Notwithstanding the foregoing provisions of this Section 2.6, in the event any such Bond shall have matured, and no default has occurred which is then continuing in the payment of the principal of, redemption premium (if any) or interest on the Bonds, the Issuer may authorize the payment of the same (without surrender thereof except in the case of a mutilated Bond) instead of issuing a substitute Bond provided security or indemnity is furnished as above provided in this Section 2.6.
Upon the issuance of any substitute Bond, the Issuer and the Trustee may charge the holder of such Bond with their reasonable fees and expenses in connection therewith. Every substitute Bond issued pursuant to the provisions of this Section 2.6 by virtue of the fact that any Bond is lost, stolen or destroyed shall constitute an original additional contractual obligation of the Issuer, whether or not the lost, stolen or destroyed Bond shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionally with any and all other Bonds duly issued under this Indenture to the same extent as the Bonds in substitution of for which such Bonds were issued.
The provisions of this Section 2.6 are exclusive and shall preclude (to the extent lawful) all of the rights and remedies with respect to the payment of mutilated, lost, stolen or destroyed Bonds, including those granted by any law or statute now existing or hereafter enacted.
Section 2.7. Additional Advances of Principal. The aggregate amount of principal advances under the Bonds shall not exceed $175,000,000. Subsequent to the initial issuance of Bonds, advances shall be made under such Bonds upon the Company's submission to the Purchaser of a Notice of Borrowing, with notice of such request to the Trustee, as provided in the Bond Purchase Agreement and subject to the satisfaction of all conditions set forth therein as determined by the Purchaser. The proceeds of each advance shall be deposited in the Project Fund and disbursed as provided in Sections 3.4 of the Loan Agreement and Section 5.2 of this Indenture. The Purchaser has agreed in the Bond Purchase Agreement to note the date and amount of each advance on the Grid attached to the Bond, but failure to make such notation shall not effect the obligation of the Company to repay such principal advance as required by the Loan Agreement and this Indenture. The principal amount of each advance shall be Outstanding under the Bonds, until repayment thereof, and the terms and provisions of this Indenture shall apply to each such advance.
Section 2.8. Execution. All the Bonds shall, from time to time, be executed on behalf of the Issuer by, or bear the manual or facsimile signature of, its Executive Director and its corporate seal (which may be in facsimile) shall be thereunto affixed (or imprinted or engraved if facsimile) and attested by the manual or facsimile signature of the Secretary.
If any of the officers who shall have signed or sealed any of the Bonds or whose facsimile signature shall be upon the Bonds shall cease to be such officer of the Issuer before the Bonds so signed and sealed shall have been actually authenticated by the Trustee or delivered by the Issuer, such Bonds nevertheless may be authenticated, issued and delivered with the same force and effect as though the person or persons who signed or sealed such Bonds or whose facsimile signature shall be upon the Bonds had not ceased to be such officers of the Issuer; and also any such Bond may be signed and sealed on behalf of the Issuer by those persons who, at the actual date of the execution of such Bonds, shall be the proper officers of the Issuer, although at the date of such Bond any such person shall not have been such officer of the Issuer.
10 Section 2.9. Negotiability, Transfer and Registry.
(a) The Bonds may be transferred and title thereto shall pass, only in the manner provided in the Provisions for Registration set forth in the form of the Bond in Section 15.1 of this Indenture. The Issuer hereby designates the Trustee as initial Bond registrar to keep the books for the registration and for the transfer of Bonds as provided in this Indenture. All Bonds presented for transfer, exchange, redemption or payment (if so required by the Issuer or the Trustee), shall be accompanied by a written instrument or instruments of transfer or authorization for exchange, in form and with guaranty of signature satisfactory to the Trustee, duly executed by the Registered Owner(s) or by his attorney duly authorized in writing. No charge shall be made to Registered Owners for the transfer and registration of the Bonds except for a sum sufficient to pay any tax, fee or governmental charge that may be imposed with respect thereto.
(b) The Issuer, the Trustee and any Paying Agent may deem and treat the Registered Owner(s) of any registered Bonds as the absolute owner of such Bond for the purpose of receiving any payment on such Bond and for all other purposes of this Indenture and the Loan Agreement, whether such Bond shall be overdue or not, and neither the Issuer, nor the Trustee nor any Paying Agent shall be affected by any notice to the contrary. Payment of, or on account of, the principal of and interest and redemption premium, if any, on any registered Bond shall be made to such Registered Owner(s) or upon his written order. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid.
(c) All Bonds issued under this Indenture, shall have such attributes of negotiability as are provided for under the laws of the State.
Section 2.10. Regulations with Respect to Exchanges and Transfers. In all cases in which the privilege of exchanging Bonds or registering the transfer of Bonds is exercised, the Issuer shall execute and the Trustee shall authenticate and deliver Bonds in accordance with the provisions of this Indenture. All Bonds surrendered in any such exchange or upon any such registration of transfer shall forthwith be delivered to the Trustee and canceled by it. There shall be no charge to Registered Owners for any such exchange or registration of transfer of Bonds, but the Issuer may require the payment of a sum sufficient to pay any tax or other governmental charge required to be paid with respect to any such exchange or registration of transfer. Neither the Issuer nor the Trustee shall be required (a) to register the transfer of or exchange any Bond for a period of fifteen (15) days next preceding any interest payment date on such Bonds or next preceding any selection of such Bond to be redeemed and after mailing of any notice of redemption or (b) to register the transfer of or exchange any Bonds called for redemption in whole or in part.
Section 2.11. Authentication. No Bond shall be secured by this Indenture or entitled to the benefit hereof or shall be valid or obligatory for any purpose unless there shall be endorsed on such Bond the Trustee's certificate of authentication, substantially in the form prescribed in this Indenture, executed by the manual signature of a duly authorized officer of the Trustee; and such certificate on a Bond issued by the Issuer shall be conclusive evidence and the only competent evidence that such Bond has been duly authenticated and delivered under this Indenture.
11 Section 2.12. Destruction of Bonds. Upon the surrender to the Trustee of any temporary or mutilated Bond, or any Bond acquired, redeemed, or paid at maturity, the same shall forthwith be canceled and, at the written request of the Issuer, be cremated or otherwise destroyed by the Trustee, and the Trustee shall, if such Bond is so cremated or destroyed, deliver its certificate of such cremation or other destruction to the Issuer.
ARTICLE III.
AUTHENTICATION AND DELIVERY OF BONDS
Section 3.1. Bonds Equally and Ratably Secured. The aggregate principal amount of Bonds which may be executed by the Issuer and authenticated by the Trustee and delivered and secured by this Indenture is not limited except as is or may hereafter be provided in this Indenture or as may be limited by law. All Bonds issued and to be issued hereunder are, and are to be, to the extent provided in this Indenture, equally and ratably secured by this Indenture without preference, priority or distinction on account of the actual time or times of the authentication or delivery or maturity of the Bonds, so that, subject as aforesaid, all Bonds at any time Outstanding hereunder shall have the same right, lien and preference under and by virtue of this Indenture and shall all be equally executed, authenticated and delivered simultaneously on the date hereof, whether the same or any of them shall actually be disposed of at such date, or whether they, or any of them, shall be disposed of at some future date, or whether they, or any of them, shall have been authorized to be executed, authenticated and delivered under Section 3.2 of this Indenture or may be authorized to be executed, authenticated and delivered hereafter pursuant to the provisions of this Indenture.
Section 3.2. Provisions for Issuance of Bonds. Upon written notice and designation by the Company, the Bonds so designated shall be executed in the designated amount by the Issuer and delivered to the Trustee for authentication, together with a statement as to the amount and disposition of the proceeds of the sale of such principal amount of said Bonds, and thereupon the Bonds shall be authenticated by the Trustee and shall be delivered to or upon the written order of the Executive Director of the Issuer. The Bonds shall be designated “Mississippi Business Finance Corporation Taxable Industrial Development Revenue Bonds, Series 2008 (Gulf South Pipeline Company, LP Project)” and executed by Issuer and delivered to the Trustee as set forth in the preceding sentence. Each such advance in respect of the Bonds when paid for by the Purchaser at the direction of the Company in accordance with the terms of this Indenture and the Loan Agreement, the Bonds, including each such advance, will have been duly authorized, executed and issued and will constitute legal, valid and binding limited obligations of the Issuer enforceable in accordance with their terms and entitled to the benefits of this Indenture. Prior to the execution and delivery of this Indenture by the Issuer and Trustee, the Trustee shall also have received the following:
(a) a resolution adopted by the Issuer authorizing the execution and delivery of the Loan Agreement, this Indenture and the Bond Purchase Agreement and the issuance and delivery of the Bonds as provided for hereunder, duly certified by the Secretary, under its corporate seal, to have been duly adopted by the Issuer and to be in full force and effect on the date of such certification;
(b) the Loan Agreement, this Indenture, the Note and the Bond Purchase Agreement;
(c) written direction to the Trustee on behalf of the Issuer and signed by the Executive Director and by the Secretary of the Issuer to authenticate and deliver the Bond to the Purchaser;
12 (d) an opinion of counsel for the Company addressed to the Issuer, the Trustee, the Purchaser and Bond Counsel to the effect that: (1) the Company has been duly formed and is validly existing under the laws of the State of Delaware and is qualified to do business and is in good standing under the laws of the State of Mississippi; (2) the Company has all requisite partnership power and authority to execute, deliver and perform its obligations under each of the Loan Documents; (3) the execution and delivery of each of the Loan Documents and the performance of its obligations thereunder have been duly authorized by all necessary partnership action on the part of the Company; (4) each of the Loan Documents has been duly executed and delivered and neither the execution and delivery by the Company of the Loan Documents, the performance by the Company of its obligations thereunder, nor the consummation of the transactions contemplated thereby, constitutes or will result in a breach of the Company's certificate of limited partnership or agreement of limited partnership, or to the knowledge of counsel, constitutes or will result in a violation of any law, rule or regulation, or any judgment, order or decree of any court or governmental authority that is applicable to the Company; (6) to the knowledge of counsel, neither the execution and delivery by the Company of the Loan Documents, the performance by the Company or its obligations thereunder, nor the consummation of the transactions contemplated thereby, will conflict with, or result in any material breach of, or constitute a default under, or result in the creation or imposition of any lien (other than as provided in the Loan Documents) upon any property or assets of the Company pursuant to, or require any consent not obtained under, any contract, indenture, mortgage, deed of trust, lease, agreement or other instrument to which the Company is a party or by which it or any of its property or assets is bound or to which it is subject, and (8) except as disclosed, to the knowledge of counsel, there is no action, suit or proceeding or governmental investigation pending to which the Company is a party that would materially adversely affect the transactions contemplated by, or the validity or enforceability of the Loan Documents, and no order, writ, judgment, injunction or decree against the Company before or by any court, arbitrator or governmental or administrative body that challenges the validity of any of the Loan Documents or the transactions contemplated thereby; and
(e) the approving Bond Counsel's Opinion with respect to the validity of this Indenture and the issuance of the Bonds hereunder and to the effect that each of the Loan Documents has been duly executed and delivered and constitutes the legal, valid and binding obligation of the Company, enforceable against the Company 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; and
(f) copies of the certificates required by Section 8(a) of the Bond Purchase Agreement; and
(g) copies of evidence of insurance as required by Section 4.12 of the Loan Agreement.
Section 3.3. Limited Obligations. The Bonds, redemption premium, if any, together with the interest thereon, are limited obligations of the Issuer payable solely by the Issuer from the Revenues and other funds pledged hereunder and under the Loan Agreement. Neither the State, nor any other political subdivision thereof, shall be obligated to pay the Bonds or the interest thereon or other costs incident thereto except from the Revenues pledged by the Issuer or other monies held hereunder for such purpose, and neither the full faith and credit nor the taxing power of the State or any p |
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