TWELFTH AMENDMENT TO LETTER OF CREDIT AGREEMENT
Between
HARRISON COUNTY, MISSISSIPPI
and
BANK OF AMERICA, N.A.
in connection with
$40,000,000
Mississippi Development Bank
Variable Rate Demand Refunding Bonds, Series 20 IOB
(Harrison County, Mississippi General Obligation
Coliseum and Convention Center Refunding Bonds), dated January 28,2010
Effective as of February 12,2013
TWELFTH AMENDMENT TO LETTER OF CREDIT AGREEMENT
This TWELFTH AMENDMENT TO 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").
WIT N ESSE T H:
WHEREAS, pursuant to a Trust Indenture entered into and dated January 28, 2010 by and
between the Mississippi Development Bank (the "Issuer") and Hancock Bank, as Trustee (the
"Trustee"), Issuer issued its $40,000,000 (original principal amount) Mississippi Development Bank
Variable Rate Demand Refunding Bonds, Series 2010B (Harrison County, Mississippi General
Obligation Coliseum and Convention Center Refunding Bonds), dated January 28, 2010 (the "Series
2010B 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 2010B 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 Letter of Credit Agreement dated
January 28, 2010 (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
$40,388,889.00, of which (a) $40,000,000 shall support the payment of principal or portion of the
purchase price corresponding to principal of the Series 2010B Bonds and (b) $388,889.00 shall support
the payment of up to 35 days of interest or portion of the purchase price corresponding to interest on
the Series 20lOB Bonds, at an assumed interest rate of 10% per annum (computed on a year of 360
days and for the actual number of days elapsed); and
WHEREAS, the initial Credit Termination Date (as defmed in the Reimbursement Agreement)
of the Letter of Credit in accordance with the Reimbursement Agreement is February 1, 2011 (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 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, 2011, 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, 20 II, 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 in the Ninth
Amendment to Letter of Credit Agreement effective August 16, 2012 (the "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 "TenthAmendment")
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
WHEREAS, pursuant to Section 2.01 of the Amended Agreement, the County has requested
the Bank to further extend the Credit Termination 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
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WHEREAS, the parties hereto have determined that in order to accommodate the requested
extension of the Credit Termination Date, it is necessary and appropriate 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. On January 28, 2010, upon fulfillment of
the applicable conditions set forth herein, the Bank will issue and deliver the Letter of Credit to
the Trustee (the date of such issuance and delivery being called the "Date of Issuance"). The
Letter of Credit shall be issued in the amount of the Commitment, shall initially be scheduled to
expire on the Credit Termination Date and shall be in substantially the form of Exhibit A of the
Reimbursement Agreement.
~he Credit Termination Date of the Letter of Credit shall be October 31, 2013. The
Bank in its sole and absolute discretion may extend the Credit Termination 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 terms and provisions as it may determine 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 term not to
exceed one (I) year. The Bank will provide written notification to the County of any extension
of the Letter of Credit at least sixty (60) days prior to the Credit Termination Date of the Letter
of Credit. In the event 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 Termination 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 terms on the Credit Termination Date. ~he terms of any extension of the Credit
Termination Date will be determined by mutual agreement after such analysis and due diligence
as the Bank may require.
If sixty (60) days prior to the. Credit Termination Date the Letter oLCr~giLi~llQt
renewed by the Bank, or the Credit Termination Date is not extended by the Bank, or the
County fails to request an extension of the Credit Terniination 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 form of a Letter of Credit.
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
3
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 or
waiver by the 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 the execution hereof, no Event of Default has occurred and is
continuing or would result from the execution of this Twelfth Amendment.
(c)
Delivery to the Bank of an opinion of counsel to the County addressed to the
Bank and in form 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 perform
this Twelfth Amendment and the Amended Agreement, as amended hereby, and to perform
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 governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign,' other then those which have been obtained, will be
4
necessary for the valid execution, delivery and performance 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 terms, 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 ofjudicial 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, as hereby amended.
SECTION 7. If< one or more provisions of this Twelfth Amendment or the applicability of any
such provisions to any set of circumstances shaH be determined to be invalid or ineffective for any
reason, such determination shaH not affect the validity and enforceability of the remaining provisions
or the applicability ofthe same provisions or any of the remaining provisions to other circumstances.
SECTION 8. All capitalized terms used herein without definition shaH 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.
SECTION 10. This Twelfth Amendment shaH 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 orieand the same' document.
[The remainder of this page is intentionally left blank; signature pages to foHow.]
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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
[Signature Page of Bank of America, NA]
S-l
(SEAL)
:;;JI;;;~
President, Board of Supervisors
ATTEST:
By-:::-L-:::94¢~~~~~-;Chancery C rk, Harrison County, Mississippi
.[Signature Page of Harrison County, Mississippi to Twelfth Amendment]
S-2
EXHIBIT "A"
ButlerSnow 15377153vl
L Vl..E M PAGE" {1932 ·201,.
RONALD G. PERESICH
PAGE, MANNINO, PERESICH & MCDERMOTT, P.L.L.C.
ATTORNEYS AT LAW
STEPHEI'J G. PERESICH
MICHAEl.. B. MCDERMOTT
759 VIEUX MARCHE' MALL
P.O. DRAWER 289
TERE R/:CHARDSON' STEEl
BILOXI~ MISSISSIPP139S33
MICHAEL E. WHITEHEAD
HEI'JRY N. DiCK, III
w. MARK EDWARDS
TELEFHONE: (228) 374~2100
FACSlMfi,E: (-228) 432~S539
DAVID M. AUEN-
LES W. SMITH
RON PERESICH, JR.
MARY W. VAN SI..'tKE*"'
EMAIL: [email protected]
JACKSON OFFICE
4tHIl3RlARWOOD DRIVE, SUITE 415
P.O. BOX 1645t1
COWlES E. SYMMES
RANDI PERESICH MUElLERGWA BARDWELL TOMPKINS
WIL.UAM SYMMES
JACt<SON, Ml$SISSIPPI39236
TeLEPHONE: (001. 8e6-tl114
FACSI'\1ILE: (SO 1) 896-0145
NATHAN L PRESCOTT~
WILUM'lV WESTBROOK. III
February 12,2013
~AlGO
admlUod In Lou~ll1nll
~'All>oAtimltl&d JI'I TonnlfflGl'ffl
~""Also
JOHANNA M. MCMULLAN"
KATHARINE MCKEE SURKINAMANDA M. BEARD
LAUREN Ra;:DERMCCRORY
RYAN A. FREDERIC
Admlttod '0 Alabama
-Also AdmJUoti In Texas
Board of Supervisors
Harrison County, Mississippi
GULFPORT OFFICE
2:408 14'" STREET
GULFPORT, MfSSISSIPPI 39501
TELEPHONE: (228) 8GS-S990
FACSWlD..E: {221q 868-8940
Mississippi Development Bank
Jackson, Mississippi
Bank of America, NA
Pensacola, Florida
Re:
$40,000,000 Mississippi Development Bank Special Obligation Variable Rate Demand
Refunding Bonds, Series 20 IOB (Harrison County, Mississippi General Obligation Bonds
Coliseum and Convention Center Refunding Bonds), dated January 28, 2010
Ladies and Gentlemen:
The Mississippi Development Bank (the "Issuer") issued its Special Obligation Variable Rate
Demand Refunding Bonds, Series 20 IOB (Harrison County, Mississippi General Obligation Bonds Coliseum
and Convention Center Refunding Bonds), dated January 28, 2010 (the "Series 201 OB Bonds"), pursuantto
the provisions of that certain Trust Indenture dated January 28, 2010 (the "Indenture") between the Issuer
and Hancock Bank, as trustee (the "Trustee"). The Series 2010B Bonds were issued for the benefit of
Harrison County, Mississippi, a public body corporate and politic constituting a political subdivision ofthe
State of Mississippi (the "County"). The Series 20 IOB Bonds are secured by that certain Bankof America,
N.A. (the "Bank") irrevocable direct pay letter of credit naming the Trustee as beneficiary, in substantially
the form of Exhibit "A" to that certain Letter of Credit Agreement dated January 28, 2010 (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'').
The initial Credit Termination Date (as defined in the Reimbursement Agreement) of the Letter of
Credit was February I, 20 II. The County requested the Bank to extend the initial Credit Termination Date
of the Letter of Credit to May 2, 20 II, which request was accepted in the First Amendment to Letter of
Credit Agreement effective December 14, 2010 (the "First Amendmeut") between the County and the 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 Amendment to Letter ofCredit Agreement
effective March 15,201 I (the "Second Amendment") between the County and the Bank.
Page, Mannino, Peresich & McDermott, P.L.L.G.
Harrison County, Mississippi
Mississippi Development Bank
Bank of America, N.A.
Febrnary 12,2013
Page 2
The County requested the Bank to further extend the Credit Termination Date ofthe Letter ofCredit
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.
The County requested the Bank to further extend the CreditTermination Date ofthe Letter ofCredit
to January 31, 2012, which request was accepted in the Fourth Amendmentto Letter of Credit Agreement
effective September 16, 2011 (the "Fourth Amendment") between the County and the Bank,
The County requested the Bank to further extend the Credit Termination Date ofthe Letter ofCredit
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.
The County requested the Bank to further extend the Credit Termination Date ofthe Letter ofCredit
to July 31, 2012, which request was accepted in the Sixth Amendmentto Letter ofCredit agreement effective
March 15,2012 (the "Sixth Amendment") between the County and the Bank.
The County requested the Bank to further extend the Credit Termination Date ofthe Letter ofCredit
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,
The County requested the Bank to further extend the Credit Termination Date ofthe Letter ofCredit
to September 30,2012, which request was accepted in the Eighth Amendmentto Letter ofCredit Agreement
effective July 16, 2012 (the "Eighth Amendment") between the County and the Bank.
The County requested the Bank to further extend the Credit Termination 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 16,2012 (the "Ninth Amendment") between the County and the Bank,
The County requested the Bank to further extend the Credit Termination Date ofthe Letter ofCredit
to January 31,2013, which request was accepted in the Tenth Amendmentto Amended and Restated Letter
ofCredit Agreement effective September 16,2012 (the "Tenth Amendment") between the County and the
Bank.
The County requested the Bank to further extend the Credit Termination 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 Termination 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 Letter of Credit
Agreement (the "Twelfth Amendment"). In connection therewith, we have been requested to provide the
opinion of Bond Counsel required by Section 3.01(h) of the Amended Agreement.
Harrison County, Mississippi
Page, Mannino, Peresich & McDermott, P.L.L.G.
Mississippi Development Bank
Bauk of Ameriea, N.A.
February 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 ofsuch examination, we are
of the opinion that the further extension ofthe Credit Termination Date and the delivery and execution of
the Twelfth Amendment (i) is authorized or permitted by the Indenture and (ii) 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 offederal income taxation ofinterest on any
Series 20 IOB Bond. In rendering these opinions, we have relied on certain representations made by the
County.
At the time ofissuance the Series 201 OB Bonds, we rendered our approving opinion dated January
28, 2010, relating to, among other things, the exemption from federal income taxation of interest on the
Series 20 lOB 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
2010B 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 ofthe Credit Termination Date of the Letter of Credit.
Our opinion represents our legal judgment based upon our review ofilie law and the facts that we
deem relevant to render such opinion, and is not a guarantee of a result. 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.
;;~::;=e~dVM~ p~
~(
I
PAGE, MANNINO, PERESICH & MCDERMOTT, P.L.L.C.
L:\CASESI40000-4S000\413J3\EXTENSION-Amendments\Twelflh Amendmell(\!2th 3. Series 2010B Bond Counsel Opinion - ($110,000,000) (02.13.l3),wpd