TWELFTH AMENDMENT TO
AMENDED AND RESTATED LETTER OF CREDIT AGREEMENT
Between
HARRISON COUNTY, MISSISSIPPI
and
BANK OF AMERICA, N.A.
in connection with
$27,525,000
Mississippi Development Bank Special Obligation
Variable Rate Demand Refunding Bonds, Series 2008A-2
(Harrison County, Mississippi Variable Rate General Obligation
Bonds Refunding Project), dated October 23, 2008
Effeetive as of February 12, 2013
TWELFTH AMENDMENT TO AMENDED AND RESTATED
LETTER OF CREDIT AGREEMENT
This TWELFTH AMENDMENT TO AMENDED AND RESTATED LETTER OF
CREDIT AGREEMENT (this "Twelfth Amendment"), effective as of February 12, 2013, is
between HARRISON COUNTY, MISSISSIPPI, a political subdivision of the State of
Mississippi (the "County"), and BANK OF AMERICA, N.A., a national banking association
(the "Bank").
WITN ESSE TH:
WHEREAS, pursuant to a Trust Indenture entered into on October 9, 2008 by and
between the Mississippi Development Bank (the "Issuer") and Hancock Bank, as Trustee (the
"Trustee"), the Issuer on October 23, 2008 issued its $27,525,000 aggregate principal amount of
Mississippi Development Bank Special Obligation Variable Rate Demand Refunding Bonds,
Series 2008A-2 (Harrison County, Mississippi Variable Rate General Obligation Bonds
Refunding Project) (the "Series 2008A-2 Bonds"); and
_________
WHEREAS, in order to provide security for the payment when due of the principal
represented by, the purchase price of and the interest represented by the Series 2008A-2 Bonds,
the County requested the Bank to issue its irrevocable direct pay letter of credit naming the
Trustee as beneficiary, in substantially the form of Exhibit A to that certain Amended and
Restated Letter of Credit Agreement dated January 28, 2010 (as so amended and restated, the
"Reimbursement Agreement") between the County and the Bank (such letter of credit and any
successor letter of credit as provided for or contemplated in such letter of credit or this
Reimbursement Agreement being herein referred to as the "Letter of Credit"), in the initial
amount of $27,788,938.36, of which (a) $27,525,000.00 supports the payment of principal or
portion of the purchase price corresponding to principal of the Bonds and (b) $263,938.36
supports the payment of up to 35 days of interest or portion of the purchase price corresponding
to interest on the Series 2008A-2 Bonds, at an assumed interest rate of 10% per armum
J comp~te<!011 _ (l_y(:(lf()f}~5_<J(ly~(lIl<!Jor!I1(:(lctll(lI_Iltll11_~(:r~!<!(lys,,:,l(lps(l<!)~_IlIl<! . . . _
WHEREAS, the initial Credit Termination Date (as defined in the Reimbursement
Agreement) of the Letter of Credit in accordance with the Reimbursement Agreement is
February
1,201 I (the "Credit Termination Date"); and
,
WHEREAS, pursuant to Section 2.01 of the Reimbursement Agreement, effective
December 14,2010, the County requested the Bank to extend the Credit Termination Date of the
Letter of Credit to May 2, 2011, which request was accepted in the First Amendment to the
Amended and Restated Letter of Credit Agreement effective December 14, 2010 (the "First
Amendment") between the County and the Bank; and
WHEREAS, effective March 15, 2011, the County requested the Bank to extend the
Credit Termination Date of the Letter of Credit to August 31,2011, which request was accepted
in the Second Amendment to Letter of Credit Agreement effective March 15, 2011 (the "Second
Amendment") between the County and the Bank; and
WHEREAS, effective July 7, 20 II, the County requested the Bank to extend the Credit
Termination Date of the Letter of Credit to October 31, 2011, which request was accepted in the
Third Amendment to Letter of Credit Agreement effective July 7,2011 (the "Third Amendment"
between the County and the Bank; and
WHEREAS, effective September 16, 2011, the County requested the Bank to extend the
Credit Termination Date of the Letter of Credit to January 31, 2012, which request was-accepted
in the Fourth Amendment to Letter of Credit Agreement effective September 16, 2011 (the
"Fourth Amendment" between the County and the Bank; and
WHEREAS, effective December 15, 2011, the County requested the Bank to extend the
Credit Termination Date of the Letter of Credit to April 30, 2012, which request was accepted in
the Fifth Amendment to Letter of Credit Agreement effective December 15, 2011 (the "Fifth
Amendment") between the County and the Bank; and
WHEREAS, effective March 15, 2012, the County requested the Bank to extend the
Credit Termination Date of the letter of Credit to July 30, 2012, which request was accepted in
the Sixth Amendment to Letter of Credit Agreement effective March 15, 2012 (the "Sixth
Amendment") between the County and the Bank; and
WHEREAS, effective June 15,2012, the County requested the Bank to extend the Credit
Termination Date of the Letter of Credit to August 31, 2012, which request was accepted in the
Seventh Amendment to Letter of Credit Agreement effective June 15, 2012 (the "Seventh
Amendment") between the County and the Bank; and
WHEREAS, effective July 16, 2012, the County requested the Bank to extend the Credit
Termination Date of the Letter of Credit to September 30, 2012, which request was accepted in
the Eighth Amendment to Letter of Credit Agreement effective July 16, 2012 (the "Eighth
Amendment") between the County and the Bank; and
WHEREAS, effective August 16, 2012, the County requested the Bank to extend the
Credit Termination Date of the Letter of Credit to October 31, 2012 which request was accepted
--_··_-_··_··---lii-iheNliiihAiiiendiileiiiio1ettei·o!credifAgreementeffectiveAiigusf··16;··2012··Cthe····'Ninth- .
Amendment") between the County and the Bank; and
WHEREAS, effective September 16,2012, the County requested the Bank to extend the
Credit Termination Date of the Letter of Credit to January 31, 2013 which request was accepted
in the Tenth Amendment to Letter of Credit Agreement effective September 16, 2012 (the
"Tenth Amendment") between the County and the Bank; and
WHEREAS, effective December 14, 2012, the County requested the Bank to extend the
Credit Termination Date of the Letter of Credit to March 31, 2013 which request was accepted in
the Eleventh Amendment to Letter of Credit Agreement effective December 14, 2012 (the
"Eleventh Amendment," and together with the First Amendment, the Second Amendment, the
Third Amendment, the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, the
Seventh Amendment, the Eighth Amendment, the Ninth Amendment, the Tenth Amendment and
the Reimbursement Agreement, the "Amended Agreement") between the County and the Bank;
and
2
WHEREAS, pursuant to Section 2.01 of the Amended Agreement, the County has
requested the Bank to further extend the Credit Tenuination Date of the Letter of Credit and
provide other amendments to the Amended Agreement, and the Bank has agreed to such request
as provided on Exhibit A hereto; and
WHEREAS, the parties hereto have detenuined that in order to accommodate the
requested extension of the Credit ~enuination Date, it is necessary and appr0priate to amend the
Amended Agreement pursuant to this Twelfth Amendment.
NOW, THEREFORE, in consideration of the respective agreements contained herein,
the parties hereto agree as follows:
SECTION 1. Section 2.01 of the Amended Agreement is hereby amended to read as
follows:
Section 2.01. Issuing the Letter of Credit. The Letter of Credit was initially
issued on the Date of Issuance. Upon fulfillment of the applicable conditions set forth
herein, the Bank will extend the Credit Tenuination Date of the Letter of Credit as
provided herein. The Letter of Credit shall be in the amount 0f the Commitment, shall be
scheduled to expire on the Credit Termination Date, as extended, and is reproduced in
Exhibit A to the Reimbursement Agreement.
The Credit Tenuination Date of the Letter of Credit shall be October 31, 2013.
The Bank in its sole and absolute discretion may extend the Credit Tenuination Date of
the Letter of Credit at the written request of the County; however, it shall have no
obligation to do so, and the Bank may require such additional tenus and provisions as it
may detenuine in its sole discretion as conditions precedent to any extension to which it
may agree. The County may provide to the Bank at least one hundred twenty (120) days
prior to the Credit Termination Date of the Letter of Credit written request for any
extension of the Letter of Credit for a tenu not to exceed one (1) year. The Bank will
provide written notification to the County of any extension of the Letter of Credit at least
._
_
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the County does not receive from the Bank a notice of an extension of the Letter of Credit
within sixty (60) days of the Credit Tenuination Date, such failure of the Bank to respond
will be deemed a denial of the renewal request, and the Letter of Credit will expire by its
tenus on the Credit Tenuination Date. The tenus of any extension of the Credit
Tenuination Date will be detenuined by mutual agreement after such analysis and due
diligence as the Bank may require.
If sixty (60) days prior to the Credit Tenuination Date the Letter of Credit is not
renewed by the Bank, or the Credit Tenuination Date is not extended by the Bank, or the
County fails to request an extension of the Credit Tenuination Date as provided above,
then the County hereby covenants and agrees that prior to the Credit Termination Date, it
will refinance or defease the Bonds or provide for a Substitute Credit Facility (as such
term is defined in the Indenture) or convert the Bonds to obligations bearing interest at
fixed rates and not requiring credit enhancement in the fonu of a Letter of Credit.
3
.
In addition, under certain circumstances as provided herein, after submission of
appropriate certificates by the Trustee, the Letter of Credit may be terminated prior to the
Credit Termination Date.
SECTION 2. Section 5.01(e) of the Amended Agreement is hereby amended to read as
follows:
(e)
Reporting Requirements. The County shall keep proper books of record
and account in which full, true and correct entries will be made of all dealings and
transactions of or in relation to affairs, operations, transactions and activities of the
County in accordance with Generally Accepted Accounting Principles, as applicable to
the County, consistently applied, and will furnish to Bank a copy of each of the
following:
(i)
As soon as available, and in any event within two hundred seventy
(270) days after the close of each fiscal year of the County, its comprehensive annual
financial report;
(ii)
Promptly, and in any event within five (5) days after any public official of
the County obtains knowledge thereof, a certificate of the President of the Board of
Supervisors of the County or the Chancery Clerk of the County setting forth the
occurrence of any Event of Default, the details thereof and the action which the County is
taking or proposes to take with respect thereto; and
(iii)
Such other information respecting the affairs, condition and/or operations,
financial or otherwise, of the County as Bank may from time to time reasonably request.
SECTION 3. Except as amended pursuant to the provisions hereof, the terms and
provisions of the Amended Agreement are hereby ratified and confirmed by the parties hereto.
SECTION 4. This Twelfth Amendment shall become effective upon the satisfaction of
___ ._....~~~::iv~r...~y t1l~_ Bank of all of the following conditions precedent:
(a) Delivery to the Bank by the County of executed counterparts of this
Twelfth Amendment.
(b) The following statements shall be true and correct as of the date hereof:
(i) The representations and warranties of the County contained in the
Amended Agreement and each of the Related Documents are true and
correct on and as of the date hereof as though made on and as of such
date (except to the extent the same expressly relate to an earlier date); and
(ii) Upon execution hereof, no Event of Default has occurred and is
continuing or would result from the execution of this Twelfth
Amendment.
4
(c) Delivery to the Bank of an opinion of counsel to the County addressed to
the Bank and in fonn and substance satisfactory to the Bank and its counsel.
(d) All other legal matters pertaining to the execution and delivery of this
Twelfth Amendment shall be satisfactory to the Bank and its counsel.
SECTION 5. In addition to the representations given in Article IV of the
Reimbursement Agreement, the County hereby represents and warrants as follows:
(a) The County has all requisite power and authority to execute, deliver and
perfonn this Twelfth Amendment and the Amended Agreement, as amended hereby,
and to perfonn each and all of the matters and things provided for herein and therein.
(b) No authorization, consent, approval, license, exemption from or
registration with any court or govenunental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, other then those which have been
obtained, will be necessary for the valid execution, delivery and perfonnance by the
County of this Twelfth Amendment or the Amended Agreement, as amended hereby.
(c) This Twelfth Amendment and the Amended Agreement, as amended
hereby, constitute the valid and binding obligations of the County enforceable against
the County in accordance with their respective tenns, except to the extent that such
enforceability may be limited by bankruptcy, insolvency, reorganization,
arrangement, fraudulent conveyance, moratorium or other laws relating to or
affecting creditors' rights generally, by the application of equitable principles, by the
exercise of judicial discretion in the appropriate cases, and by the limitations
contained in applicable law regarding legal remedies against the County.
---
SECTION 6. Reference to this Twelfth Amendment need not be made in any note,
document, agreement, letter, certificate, the Amended Agreement or any communication issued
or made subsequent to or with respect to the Amended Agreement, it being hereby agreed that
any reference to the Amended Agreement shall be sufficient to refer to the Amended Agreement,
"'-ashereIiyamended~
..
SECTION 7. If one or more provisions of this Twelfth Amendment or the applicability
of any such provisions to any set of circumstances shall be detennined to be invalid or
ineffective for any reason, such determination shall not affect the validity and enforceability of
the remaining provisions or the applicability of the same provisions or any of the remaining
provisions to other circumstances.
SECTION 8. All capitalized terms used herein without definition shall have the same
meanings herein as they have in the Amended Agreement.
SECTION 9. The County agrees to pay on demand all reasonable fees and expenses of
or incurred by counsel to the Bank in connection with the negotiation, preparation, execution and
delivery of this Twelfth Amendment.
5
SECTION 10. This Twelfth Amendment shall be construed and enforced in accordance
with the laws of the State of Mississippi.
SECTION 11. This Twelfth Amendment may be executed in one or more counterparts
and when each party hereto has executed at least one counterpart, this Twelfth Amendment shall
become binding on all parties and such counterparts shall be deemed to be one and the same
document.
[The remainder of this page is intentionally left blank; signature pages to follow.]
6
IN WITNESS WHEREOF, the· parties hereto, by their officers thereunto duly
authorized, have executed and delivered this Twelfth Amendment, effective as of the day and
year first above written.
BANK OF AMERICA, N.A.
By
Senior Vice
[Signature Page of Bank of Americilo N.A.]
S-l
(SEAL)
~j;;;;;4.
President, Board of Supervisors
ATTEST:
By ~~~~~~:::::::::-.,--.-,--,.Chan y Clerk, Harrison County, Mississippi
___ ._
_
.
[Signature.Page.. ofHarrison_Co.unty, MississippLto_T:welfth.Amendrnent]
S-2
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_.. _..
EXHIBIT"A"
ButJerSnow 15376807vl
LYLE M. PAGE'" (1932 -2(11)
ROHA1..D G. PERESICH
STEPHEN G. PERESICH
MICHAEl. B. MCDERMOll
TERE RJCHA!WSON STEEL
PAGE, MANNINO, PERESICH & McDERMOTT, P.L.L.C.
ATTORNEYS AT LAW
AMANDA M BEARD
LAUREN REEDER MCCRORY
759 VH:UX MARCHE' MALL
P.O. DRAWER 289
MJCHAEI. E. WHtrEHEAD
RYAN A. FREDERIC
BILOXI, MISSISSIPPI 39533
HENRY N. DICIC, PI
W. MARK EDWARDS
DAVID M. ALL.EN......
LESW. SMWH
RON PERESICH, JR..
MARYW. VAN SLYKE""
COWLES E. SYMMES
RANDI PERESlCH MUEI..LERGINA BARDVlIE'LL TOMPKINS
Wll.LlAM SYMMES
NATH}I,N L PRESCOTT'"
WILUAMVWESTBROOK,
JOHANNA M. MCMULLAN'
KATHARINE MCKEE SURKIN-
TE-L:&l'HONE: (228) 374 2100
FACSIMD...E: (228) 432MS539
M
EMAIL: PMP@PMl'.ORG
JACKSON OFHCE
460 BfHARWOOD DRIVE, SUJrE 415
P.O. bOX 16450
JACKSON, MISSlSSPPI 39236
TELEPHONE; (601) 89&-0114
FACSIMU.E: (601) 896-0145
m
February 12,2013
GULFPORT OFfiCE
240814" STREET
"Also admitted In LQul&lana
"'Al&t> Adml1tod In TOl'm(lIl\lCl}
-A190 Admlttod In Alu.bllm:!
GULFPOItf, MISSISSIPPI 39501
TELEPHONE: (2.28) 868-8999
FACStMILE: (228; 8SS_8940
--A11l0 Admlttod In Texas
Board of Supervisors
Harrison County, Mississippi
Mississippi Development Bank
Jackson, Mississippi
Bank of America, N.A.
Pensacola, Florida
Re:
$27,525,000 Mississippi Development Bank Special Obligation Variable Rate Demand
Refunding Bonds, Series 2008A-2 (Harrison County, Mississippi Variable Rate General
Obligation Bonds Refunding Project), dated October 23, 2008
Ladies and Gentlemen:
The Mississippi Development Bank (the "Issuer") issned its Special Obligation Variable Rate
Demand Refunding Bonds, Series 2008A-2 (Han'ison County, Mississippi Variable Rate General Obligation
Bonds Refunding Project), dated October 23, 2008 (the "Series 2008A-2 Bonds") on October 23, 2008,
pursuant to the provisions of that certain Trust Indenture dated October 9,2008 (the "Indenture") between
the Issuer and Hancock Bank, as trustee (the "Trustee"). The Series 2008A-2 Bonds were issued for the
benefit of Harrison County, Mississippi, a public body corporate and politic constituting a political
subdivision ofthe State ofMississippi (the "County"). The Series 2008A-2 Bonds are secured by that certain
Bank ofAmerica, N.A. (the "Bank") irrevocable direct pay letter ofcredit naming the Trustee as beneficiary,
in substantially the form of Exhibit "A" to that certain Amended and Restated Letter of Credit Agreement
dated January 28, 20 I0 (as so amended and restated, the "Reimbursement Agreement") between the County
and the Bank (such letter ofcredit and any successor letter ofcredit as provided for or contemplated in such
letter of credit or this Reimbursement Agreement being herein referred to as the "Letter of Credit").
The initial Credit Termination Date (as defined in the Reimbursement Agreement) of the Letter of
Credit was February I, 2011. The County reqnested the Bank to extend the initial Credit Termination Date
ofthe Letter of Credit to May 2, 2011, which request was accepted in the First Amendment to the Amended
and Restated Letter ofCredit Agreement effective December 14, 20 10 (the "First Amendment") between the
County and Bank.
The County requested the Bank to further extend the Credit Termination Date ofthe Letter ofCredit
to August 31,2011, which request was accepted in the Second Amendmentto Amended and Restated Letter
of Credit Agreement effective March 15,2011 (the "Second Amendment") between the County and the
Bank.
Page, Mannino, Peresich & McDermott, P.L.L.C.
Harrison County, Mississippi
Mississippi Development Bank
Bank of America, N.A.
February 12, 2013
Page 2
The County requested the Bank to further extend the CreditTennination Date ofthe Letter ofCredit
to October 31,2011, which request was accepted in the Third Amendment to Amended and Restated Letter
of Credit Agreement effective July 7, 2011 (the "Third Amendment") between the County and the Bank.
The County requested the Bank to further extend the Credit Tennination Date ofthe Letter ofCredit
to January 31, 2012, which reqnestwas accepted in the Fourth Amendment to Amended and Restated Letter
ofCredit Agreement effective September 16, 2011 (the "Fourth Amendment") between the County and the
Bank.
The County requested the Bank to further extend the CreditTennination Date ofthe Letter ofCredit
to April 30, 2012, which request was accepted in the Fifth Amendment to Amended and Restated Letter of
Credit Agreement effective December 15,2011 (the "Fifth Amendment") between the County and the Bank.
The County requested the Bank to further extend the Credit Tennination Date ofthe Letter ofCredit
to July 31, 2012, which request was accepted in the Sixth Amendment to Amended and Restated Letter of
Credit Agreement effective March 15,2012 (the "Sixth Amendment") between the County and the Bank.
The County requested the Bank to further extend the Credit Tennination Date ofthe Letter ofCredit
to Angnst 31,2012, which reqnest was accepted in the Seventh Amendmentto Amended and Restated Letter
ofCredit Agreement effective June 15, 20 12 (the "Seventh Amendment") between the County and the Bank.
The County requested the Bank to further extend the Credit Tennination Date ofthe Letter ofCredit
to September 30, 2012, which request was accepted in the Eighth Amendment to Amended and Restated
Letter of Credit Agreement effective July 16, 2012 (the "Eighth Amendment") between the County and the
Bank.
The County requested the Bank to further extend the Credit Tennination Date ofthe Letter ofCredit
to October 31,2012, which request was accepted in the Ninth Amendment to Amended and Restated Letter
ofCredit Agreement effective August 16, 20 12 (the "Ninth Amendment") between the County and the Bank.
The County requested the Bank to further extend the Credit Tennination Date ofthe Letter ofCredit
to January 31,2013, which request was accepted in the Tenth Amendment to Amended and Restated Letter
of Credit Agreement effective September 16, 2012 (the "Tenth Amendment") between the County and the
Bank.
The County requested the Bank to further extend the Credit Tenninalion Date ofthe Letter ofCredit
to March 31,2013, which request was accepted in the Eleventh Amendmentto Amended and Restated Letter
of Credit Agreement effective December 14, 2012 (the "Eleventh Amendment", and together with the First
Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment,
the Sixth Amendment, the Seventh Amendment, the Eighth Amendment, the Ninth Amendment, the Tenth
Amendment and the Reimbursement Agreement, the "Amended Agreement") between the County and the
Bank.
Pursuant to Section 2.01 of the Amended Agreement, the County has requested the Bank to further
extend the Credit Tennination Date ofthe Letter of Credit to October 31, 2013, which request requires the
County and Bank to amend the Amended Agreement by way of a Twelfth Amendment to Amended and
Restated Letter of Credit Agreement (the "Twelfth Amendment"). In connection therewith, we have been
requested to provide the opinion ofBond Counsel required by Section 3.01(h) ofthe Amended Agreement.
Page, Mannino, Peresich & McDermott, P.L.L.C.
Harrison County, Mississippi
Mississippi Development Bank
Bank of America, N.A.
Febrnary 12,2013
Page 3
Pursuant to such request, we have examined such documents and matters of law as we have
considered necessary in order to enable us to render such opinion. On the basis of such examination, we are
of the opinion that the further extension of the Credit Termination Date and the delivery and execution of
the Twelfth Amendment (i) is authorized or permitted by the Indenture and (i1) will not, under existing law,
including current rulings and official interpretations of law by the United States Internal Revenue Service,
adversely affect any exclusion from gross income for purposes oHederal income taxation ofinterest on any
Series 2008A-2 Bond. In rendering these opinions, we have relied on certain representations made by the
County.
At the time ofissuance the Series 2008A-2 Bonds, we rendered our approving opinion dated October
23, 2008, relating to, among other things, the exemption from federal income taxation of interest on the
Series 2008A-2 Bonds. We have not been requested, nor have we undertaken, to review any events that may
have occurred since we rendered such approving opinion that might affect the tax-exempt status ofthe Series
2008A-2 Bonds or that might change the opinions expressed in such approving opinion. The opinions
expressed herein are accordingly limited to those required by the Amended Agreement as a condition to the
extension of the Credit Termination Date of the Letter of Credit.
Our opinion represents our legal judgment based upon our review of the law and the facts that we
deem relevant to render snch opinion, and is not a gnarantee of a resnlt. This opinion is given as ofthe date
hereof and we assume not obligation to revise or supplement this opinion to reflect any facts or
circumstances that may hereafter come to our attention or any changes in law that may hereafter occur.
&;;t~~9dt~f~
PAGE, MANNINO, PERESICH & MCDERMOTT, P.L.L.C.
L:\CASES\40000-45000\4J313\EXTENSION.AmendmentsWwelflh Amendment\12lh 2. Series 2ooM·2 Bond Counsel Opinion· ($27,525,000) (02. J3.13).wpd