Exhibit 4.2
Execution Version
LOAN AGREEMENT
BETWEEN
MISSISSIPPI BUSINESS FINANCE
CORPORATION
AND
GULF SOUTH PIPELINE COMPANY,
LP
Dated as of December 1,
2008
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
4.2. 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
7.2. 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
9.2. 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
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, 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.
"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.
"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.
"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
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 $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 Moody's 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.
"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 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 Smith Counties in Mississippi.
"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.
(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.
(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.
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.
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 an
