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Exhibit 10.55
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PLACEMENT AGREEMENT
BETWEEN
PRIORITY FULFILLMENT SERVICES, INC.
(THE "OBLIGOR")
AND
COMERICA SECURITIES
(THE "PLACEMENT AGENT")
AND
MISSISSIPPI BUSINESS FINANCE CORPORATION
(THE "ISSUER")
DATED AS OF NOVEMBER 1, 2004
RELATING TO
$5,000,000
MISSISSIPPI BUSINESS FINANCE CORPORATION
TAXABLE VARIABLE RATE DEMAND LIMITED OBLIGATION
REVENUE BONDS, SERIES 2004
(PRIORITY FULFILLMENT SERVICES, INC. PROJECT)
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TABLE OF CONTENTS
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PAGE
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Section 1. Representations, Warranties and
Covenants of the Issuer........................................
1
Section 2. Representations, Warranties and
Covenants of the Obligor.......................................
3
Section 3. Approval of Private Placement
Memorandum.......................................................
5
Section 4. Placement of the
Bonds.........................................................................
5
Section 5. Payment to the Issuer and Delivery
of Bonds....................................................
7
Section 6.
Limitation.....................................................................................
7
Section 7. Fees and
Expenses..............................................................................
8
Section 8. Indemnification and
Contribution...............................................................
8
Section 9. Responsibilities of Placement
Agent............................................................
10
Section 10. Governing
Law..................................................................................
10
Section 11.
Counterparts...................................................................................
10
Section 12. Binding
Effect.................................................................................
10
Section 13. Survival of Issuer's and
Obligor's Representations and
Obligations............................. 10
Section 14. Failure of Purchase to
Occur...................................................................
10
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PLACEMENT AGREEMENT
$5,000,000
Mississippi Business Finance Corporation
Taxable Variable Rate Demand Limited Obligation
Revenue Bonds, Series 2004
(Priority Fulfillment Services, Inc. Project)
Dated as of November 1, 2004
PRIORITY FULFILLMENT SERVICES, INC.
500 N. Central Expressway, Suite 500
Plano, Texas 75074
MISSISSIPPI BUSINESS FINANCE
CORPORATION
735 Riverside Drive, Suite 300
Jackson, Mississippi 39202
Ladies and Gentlemen:
At the
request of Priority Fulfillment Services, Inc., a Delaware
corporation (the "Obligor"), Comerica
Securities (the "Placement Agent") has
acted as your placement agent in connection
with the initial placement with the
purchasers (the "Purchasers") of $5,000,000
aggregate principal amount of
Mississippi Business Finance Corporation
Taxable Variable Rate Demand Limited
Obligation Revenue Bonds, Series 2004
(Priority Fulfillment Services, Inc.
Project) (the "Bonds"), to be issued on the
date of the acceptance hereof
pursuant to a Trust Indenture dated as of
November 1, 2004 (the "Indenture")
between the Mississippi Business Finance
Corporation (the "Issuer") and U.S.
Bank National Association, as Trustee (the
"Trustee"). The proceeds of the Bonds
are to be loaned to the Obligor pursuant to
a Loan Agreement dated as of
November 1, 2004 (the "Loan Agreement")
between the Issuer and the Obligor. The
payment when due of the principal and
interest on (and purchase price of) the
Bonds will be supported, to the extent
provided therein, by a Letter of Credit
issued by Comerica Bank, Detroit, Michigan
(the "Bank") pursuant to a
Reimbursement Agreement dated as of
November 1, 2004 (the "Reimbursement
Agreement") between the Obligor and the
Bank. The Bonds will bear interest at
the initial rate of ____% and are more
fully described in the Preliminary
Private Placement Memorandum dated December
15, 2004 (the "Preliminary Private
Placement Memorandum") and the Private
Placement Memorandum dated December 22,
2004 (the "Private Placement Memorandum")
prepared in connection with the
placement of the Bonds.
SECTION 1.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ISSUER. By the
Issuer's acceptance hereof, the Issuer
hereby represents and warrants to, and
agrees with, the Placement Agent that as of
the date of acceptance of this
Agreement:
(a) The Issuer is duly authorized under the constitution and laws
of
the State of Mississippi to issue the Bonds
and to execute, deliver and perform
its obligations hereunder
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and under the Loan Agreement, the Indenture
and the Bonds, to pledge the
Security described in the Indenture and
pledged thereby in the manner and to the
extent therein set forth; all actions
required of the Issuer for the issuance of
the Bonds and the execution and delivery
of, and the performance of its
obligations under, this Agreement and under
the Loan Agreement, the Indenture
and the Bonds have been duly and
effectively taken; this Agreement, the Loan
Agreement and the Indenture have been duly
executed, issued and delivered by the
Issuer and, assuming the due authorization
and execution thereof by the other
parties thereto, are valid, binding and
enforceable agreements of the Issuer,
except as the enforceability thereof may be
limited by bankruptcy, insolvency or
similar laws affecting the enforcement of
creditors' rights generally and
general principles of equity; and the Bonds
have been duly authorized, executed,
issued and delivered and constitute valid
and binding limited obligations of the
Issuer, enforceable in accordance with
their respective terms, except as the
enforceability thereof may be limited by
bankruptcy, insolvency or similar laws
affecting the enforcement of creditors'
rights generally and general principles
of equity.
(b) There is no action, suit, proceeding, inquiry or
investigation
at law or in equity or before or by any
court, public board or body or other
governmental authority pending, with
respect to which the Issuer has received
service of process, or, to the knowledge of
the Issuer, is threatened against or
affecting it wherein an unfavorable
decision, ruling or finding could adversely
affect the transactions contemplated by
this Agreement, or which in any way
raises any question concerning the
legality, validity or enforceability of this
Agreement, the Bonds, the Indenture or the
Loan Agreement, nor to the best
knowledge and belief of the Issuer is there
any basis therefor.
(c) The execution, delivery and performance by the Issuer of
this
Agreement, the Loan Agreement, the
Indenture and the Bonds do not and will not
violate any order, injunction, ruling or
decree by which the Issuer is bound,
and do not and will not constitute a breach
of or a default under any agreement,
indenture, mortgage, lease, note or other
obligation, instrument or arrangement
to which the Issuer is a party or by which
the Issuer or any of its property is
bound, or contravene or constitute a
violation of any law, rule or regulation to
which the Issuer or any of its property is
subject, and no approval or other
action by, or filing or registration with,
any governmental authority or agency
is required in connection therewith which
has not been previously obtained or
accomplished (except that the Issuer makes
no representation as to compliance
with state securities or "Blue Sky" laws or
the securities laws of the United
States or as to any permits, governmental
permissions, including environmental
clearances, rights and licenses, as may be
necessary for the construction and
operation of the Project (as defined in the
Indenture), as to which no
representation or warranty or covenant is
made).
(d) The information contained under the caption "The Issuer" in
each
of the Preliminary Private Placement
Memorandum and the Private Placement
Memorandum is true and correct and does not
contain any untrue statement of a
material fact and does not omit to state a
material fact necessary in order to
make the statements made therein, in light
of the circumstances under which they
were made, not misleading.
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(e) Each of the representations and warranties of the Issuer
contained in the Loan Agreement and in the
Indenture are true and correct on and
as of the date hereof and are hereby made
to the Placement Agent on and as of
the date hereof as if set forth herein at
length.
(f) The Issuer will not knowingly take any action or fail to
take
any action it alone could take, which
action or omission might in any way result
in the loss of the exclusion of interest on
the Bonds from gross income for
federal income tax purposes.
(g) Any certificate signed by any member or authorized officer
of
the Issuer and delivered to the Placement
Agent shall be deemed a representation
and warranty by the Issuer to the Placement
Agent as to the statements made
therein.
(h) The Issuer shall cooperate with the Placement Agent in any
endeavor to qualify the Bonds for offering
and sale under the securities or
"Blue Sky" laws of such jurisdictions of
the United States as the Placement
Agent may request; and the Issuer will
furnish such information, execute such
instruments and take such other action in
cooperation with the Placement Agent
as the Placement Agent may reasonably
request in connection therewith; provided,
however, that the Issuer shall not be
required to register as a dealer or a
broker in any such state or jurisdiction or
make any additional representations
or warranties in connection with the sale
of securities, or to subject itself to
service of process in any state or
jurisdiction other than the State of
Mississippi. The Issuer consents to the use
of the Preliminary Private Placement
Memorandum and the Private Placement
Memorandum by the Placement Agent in
obtaining such qualification.
SECTION 2.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE OBLIGOR. By
its acceptance hereof, the Obligor
represents and warrants to, and agrees with,
the Placement Agent and the Issuer
that:
(a) The Obligor has taken all necessary action to authorize,
execute
and deliver this Agreement, the Loan
Agreement and the other documents and
agreements (including, without limitation,
the Reimbursement Agreement) executed
and delivered in connection with the
issuance of the Bonds and the other
transactions contemplated hereby (each a
"Related Document" and, collectively,
the "Related Documents") to which it is a
party, and this Agreement, the Loan
Agreement and the Related Documents to
which it is a party have been duly
executed and delivered by the Obligor and
constitute the legal, valid and
binding obligations of the Obligor,
enforceable in accordance with their
respective terms except as the
enforceability thereof may be limited by
bankruptcy, insolvency or similar laws
affecting the enforcement of creditors'
rights generally and general principles of
equity.
(b) There is no action, suit, proceeding, inquiry or
investigation
at law or in equity, or before or by any
court, public board or body or other
governmental authority, pending or, to the
best knowledge and information of the
Obligor, threatened against or affecting
the Obligor, wherein an unfavorable
decision, ruling or finding could
materially adversely affect the business or
financial condition of the Obligor or could
adversely affect the transactions
contemplated by this Agreement or the
Private Placement Memorandum, or which in
any manner raises any question concerning
the legality, validity or
enforceability of this Agreement, the
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Bonds, the Indenture, the Loan Agreement or
any Related Document to which the
Obligor is a party, nor to the best
knowledge and belief of the Obligor is there
any basis therefor.
(c) The execution, delivery and performance by the Obligor of
this
Agreement, the Loan Agreement and the
Related Documents to which it is a party
do not and will not materially violate the
Charter or By-laws of the Obligor, or
any order, injunction, ruling or decree by
which the Obligor is bound, and do
not and will not constitute a material
breach of or a default under any
agreement, indenture, mortgage, lease, note
or other obligation, instrument or
arrangement to which the Obligor is a party
or by which the Obligor or any of
its property is bound, or to the Obligor's
best knowledge contravene or
constitute a material violation of, any
law, rule or regulation to which the
Obligor or any of its property is subject,
and to the Obligor's best knowledge
no approval or other action by, or filing
or registration with, any governmental
authority or agency is required in
connection therewith which has not been
previously obtained or accomplished,
provided that, for this purpose, the terms
"materially" and "material" mean that such
event or circumstance will not
adversely affect the (1) Obligor's power
and authority to execute this
Agreement, the Loan Agreement and the
Related Documents, (2) the enforceability
against the Obligor of such documents or
(3) the Obligor's ability to repay the
Bonds.
(d) The descriptions and information contained in the
Preliminary
Private Placement Memorandum as of its date
and the Private Placement Memorandum
as of its date under the captions
"Introductory Statement," "The Obligor and the
Use of Proceeds," "The Bonds" (other than
the information under the sub-heading
"Book-Entry System"), "Sources of Payment
and Security," "The Letter of Credit,"
"The Reimbursement Agreement," "The Loan
Agreement," "The Pledge and Security
Agreement," and "The Trust Indenture" (such
descriptions and information are
referred to herein as the "Obligor's
Portion of the Preliminary Private
Placement Memorandum" and the "Obligor's
Portion of the Private Placement
Memorandum," respectively) are true and
correct in all material respects and do
not contain any untrue statement of a
material fact or omit to state a mate
