EXHIBIT 4.1
No. R-1 $4,000,000
UNITED STATES OF AMERICA
STATE OF ALABAMA
THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF MONTGOMERY
INDUSTRIAL REFUNDING REVENUE BOND
(KINPAK INC. PROJECT)
SERIES 1997
Maturity Date: First Business Day CUSIP NO. 613052 QA 0
of March, 2012
Registered Owner: CEDE & CO. Dated date: March 3, 1997
Principal Amount: $4,000,000 Interest Rate: Seven-Day Rate,
unless otherwise legended
THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF MONTGOMERY, a public
corporation organized under the laws of the State of Alabama (the "Issuer",
which term includes any successor corporation thereto), for value received,
promises to pay, solely from the source hereinafter provided, to the Registered
Owner set forth above or its registered assigns, the Principal Amount set forth
above on the Maturity Date set forth above, unless sooner tendered for purchase
or called for redemption, and to pay interest on said Principal Amount at the
interest rates provided herein from the most recent date to which interest shall
have been paid or provided for or, if no interest shall have been paid or
provided for, from the date of initial delivery hereof and payment herefor,
being the Dated date shown above (the "Issue Date").
In no event will the interest rate on the Bonds (hereinafter defined)
exceed the lower of (i) 15% per annum or (ii) for any period during which the
Bonds are supported by a Letter of Credit (hereinafter defined), the maximum
rate per annum, specified therein, at which there has been calculated the amount
available to be drawn on such Letter of Credit to pay interest on the Bonds (the
"Cap Rate").
Principal hereof and any premium hereon are payable, upon presentation
and surrender of this Bond, at the corporate trust office located in Montgomery,
Alabama, of the Trustee, initially Regions Bank, which is also initially the
Tender Agent (the "Tender Agent") for the Bonds; provided that the principal and
interest due as components of the purchase price of this Bond are payable only
at said office of the Tender Agent (the "Tender Office"). Interest payable on
each Interest Payment Date (hereinafter defined) will be payable by check or
draft caused to be sent by the Trustee to the person in whose name this Bond (or
one or more predecessor bonds) is registered (the "Holder") at the close of
business on the Record Date (hereinafter defined) on the registration books for
this issue (the "Register") maintained by the Trustee, as Registrar, at the
address appearing therein; provided that the Trustee shall, upon written request
of any Holder of at least $500,000 in aggregate principal amount of the Bonds,
enter into an agreement with such Holder providing for such payments to be made
by wire transfer or other method than check or draft. As used herein, "Record
Date" shall mean the Business Day next preceding any Interest Payment Date
during the Seven-Day Rate Period (hereinafter defined) or the 15th day (whether
or not a Business Day) next preceding any Interest Payment Date during the Fixed
Rate Period (hereinafter defined). Any interest which is not timely paid or duly
provided for shall be payable to the Holder hereof (or of one or more
predecessor bonds) at the close of business on a date (the "Special Record
Date") to be fixed by the Trustee for the payment of that overdue interest.
Notice of the Special Record Date shall be mailed to Holders not less than ten
calendar days prior thereto. The principal of and interest and any premium on
this Bond are payable in lawful money of the United States of America, without
deduction for the services of any paying agent.
This Bond is one of a duly authorized issue of obligations designated
"Industrial Refunding Revenue Bonds (KINPAK INC. Project) Series 1997" limited
in aggregate principal amount to $4,000,000 (the "Bonds") issued by the Issuer
pursuant to Article 4, Chapter 54, Title 11 of the Code of Alabama of 1975, as
amended (the "Act"). The Bonds are issued for the purpose of refunding
obligations heretofore issued by the Issuer to pay costs of the acquisition,
construction and equipping of a "manufacturing facility" along with facilities
"directly related and ancillary" thereto, all within the meaning of Section
144(a)(12)(C) of the Internal Revenue Code of 1986, as amended (the "Code"),
including without limitation facilities for the manufacture of aftermarket
products for the consumer marine and recreational vehicles markets (the
"Project"). Title to the Project is vested in the Issuer, but is leased by the
Issuer to and used by KINPAK INC., an Alabama corporation (the "Company")
pursuant to a Restated Lease Agreement dated as of December 1, 1996 (the
"Original Lease"), as amended and supplemented by a First Supplemental Lease
Agreement dated as of March 1, 1997 (the "First Supplemental Lease", and
collectively with the Original Lease, the "Lease Agreement").
Pursuant to the Lease Agreement, the Company has agreed to make
payments to or for the account of the Issuer (the "Basic Rent") at such times
and in such amounts as shall be sufficient (subject to any credits therein
provided for) to pay when due the principal of and premium (if any) and interest
on ("Debt Service"), and purchase price of, the Bonds.
The Bonds are issued under and secured and entitled to the protection
given by a Trust Indenture dated as of December 1, 1996 (the "Original
Indenture"), as amended and supplemented by a First Supplemental Trust Indenture
dated as of March 1, 1997 (the "First Supplemental Indenture", and collectively
with the Original Indenture, the "Indenture"), both duly executed and delivered
by the Issuer to the Trustee. The term "Trustee" where used herein refers to
Regions Bank, Montgomery, Alabama, or its successor in trust. CAPITALIZED TERMS
NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANINGS GIVEN TO THEM OR
INCORPORATED BY REFERENCE IN THE FIRST SUPPLEMENTAL INDENTURE.
The Bonds are secured under the Indenture on a parity with the Issuer's
$990,000 Industrial Refunding Revenue Bonds (KINPAK INC. Project) Series 1996B,
heretofore issued on December 20, 1996 (the "Series 1996B Bonds"), which have
terms and provisions substantially similar to those of the Bonds.
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PURSUANT TO THE INDENTURE, THE ISSUER HAS ASSIGNED AND PLEDGED TO THE
TRUSTEE ALL BASIC RENT AND ALL RIGHTS OF THE ISSUER UNDER THE LEASE AGREEMENT
(EXCEPT AS THEREIN RESERVED).
As further security for the payment of the Bonds, the Company has
caused First Union National Bank of Florida, Ft. Lauderdale, Florida (the
"Bank"), to issue an irrevocable letter of credit in favor of the Trustee in the
amount of (a) the aggregate principal amount of the Bonds, to enable the Trustee
to pay the principal amount of the Bonds when due and to pay the principal
portion of the purchase price of Bonds tendered (or deemed tendered) for
purchase, plus (b) interest on the Bonds for a period of 120 days at the maximum
annual rate of 15%, to enable the Trustee to pay interest thereon when due and
to pay the interest portion of the purchase price of Bonds tendered (or deemed
tendered) for purchase. The initial letter of credit so delivered to the Trustee
and any substitute letter of credit delivered to the Trustee pursuant to the
Indenture and the Lease Agreement are herein referred to as the "Letter of
Credit".
The Letter of Credit provides identical security for the payment of the
Series 1996B Bonds.
The initial Letter of Credit has been issued by the Bank pursuant to a
Letter of Credit and Reimbursement Agreement dated as of December 1, 1996 (as
the same may be amended or supplemented in connection with the issuance of the
Bonds, the "Reimbursement Agreement") between the Bank and the Company whereby
the Company has agreed, among other things, to reimburse the Bank for all
amounts drawn by the Trustee pursuant to the initial Letter of Credit or any
substitute Letter of Credit issued by the Bank.
THE BONDS ARE LIMITED OBLIGATIONS OF THE ISSUER PAYABLE SOLELY OUT OF
THE BASIC RENT. THE BONDS ARE ALSO PAYABLE OUT OF PAYMENTS MADE BY THE BANK
PURSUANT TO THE LETTER OF CREDIT. THE BONDS AND THE PREMIUM, IF ANY AND INTEREST
THEREON WILL NOT BE IN ANY WAY A DEBT OR LIABILITY OF THE CITY OF MONTGOMERY,
ALABAMA (THE "CITY"), THE STATE OR ANY POLITICAL SUBDIVISION OF EITHER OF THEM.
NO HOLDER SHALL HAVE THE RIGHT TO COMPEL THE EXERCISE OF ANY TAXING POWER OF THE
CITY, THE STATE OR ANY POLITICAL SUBDIVISION OF EITHER OF THEM TO PAY THE BONDS
OR ANY PREMIUM OR INTEREST THEREON. THE ISSUER HAS NO TAXING POWER.
No covenant or agreement contained in this Bond shall be deemed to be a
covenant or agreement of any officer, agent or employee of the Issuer, and
neither any member of the governing body of the Issuer nor any officer executing
this Bond shall be liable personally on this Bond or be subject to any personal
liability or accountability by reason of the issuance hereof.
Copies of the Indenture, the Lease Agreement, the initial Letter of
Credit and the Reimbursement Agreement are on file at the principal office of
the Trustee, and reference is hereby made to such instruments for a more
complete description of the Project, the provisions, among others, with respect
to the nature and extent of the security, the rights, duties and obligations of
the Issuer, the Trustee and the Holders of the Bonds and the terms upon which
the Bonds are issued and secured, to all of which provisions each Holder, by
acceptance hereof, hereby assents.
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INTEREST RATE PROVISIONS
This Bond shall bear interest at the Seven-Day Rate (determined as
provided below) (a) from the Issue Date until and including the day immediately
prior to the earlier of the Conversion Date or the Maturity Date (the "Seven-Day
Rate Period"). This Bond shall bear interest at the Fixed Rate (determined as
provided below) from the Conversion Date until and including the day immediately
prior to the Maturity Date (the "Fixed Rate Period").
Interest at the Seven-Day Rate shall be computed on the basis of a 365-
or 366-day year, as the case may be, for the number of days actually elapsed.
Interest at the Fixed Rate shall be computed on the basis of a 360-day year for
the number of days actually elapsed.
Interest shall be payable (but solely from the source hereinabove
described) on overdue principal of this Bond and (to the extent legally
enforceable) on any overdue installment of interest on this Bond at the rate per
annum which is one percent per annum in excess of that rate announced from time
to time by the Bank as its Prime Rate.
Interest on this Bond shall be payable in arrears on the first Business
Day of each March, June, September and December, commencing on the first
Business Day of June, 1997 (each such date, an "Interest Payment Date").
In any case where the scheduled date of any payment on this Bond is not
a Business Day, then such payment shall be made on the Business Day next
succeeding the scheduled date, in the same amount due, and with the same force
and effect as if made, on the scheduled date.
Seven-Day Rate. The Seven-Day Rate shall be determined on the Issue
Date and on each Wednesday (or if Wednesday is not a Business Day, on the next
succeeding Business Day) of each succeeding week during the Seven-Day Rate
Period (each such date being herein called a "Seven-Day Rate Determination
Date"). The Seven-Day Rate so determined on each Seven-Day Rate Determination
Date shall be effective from the day of each week during any Seven-Day Rate
Period following the Seven-Day Rate Determination Date for such week until and
including the day immediately prior to the earlier of the Conversion Date or the
following Thursday; provided, however, that if the Seven-Day Rate is not so
determined on any Seven-Day Rate Determination Date, the Seven-Day Rate as
determined on the next preceding Seven-Day Rate Determination Date shall remain
in effect until and including the day immediately prior to the earlier of the
Conversion Date or the following Thursday. From the Issue Date to and including
the first Seven-Day Rate Determination Date, the Bonds shall bear interest at
the interest rate determined, in accordance with the Indenture, to be the rate
necessary, taking into account prevailing market conditions, to enable the
Remarketing Agent to sell the Bonds at par (plus accrued interest, if any); such
rate, however, not to exceed the Cap Rate. The Seven-Day Rate shall thereafter
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be determined by the Remarketing Agent on each Seven-Day Rate Determination Date
and shall equal the lesser of (a) the Cap Rate, or (b) the interest rate
determined by the Remarketing Agent to be the interest rate that would result in
the market value of the Bonds on such Seven-Day Rate Determination Date being
100% of the principal amount thereof, taking into account prevailing market
conditions. The Trustee shall confirm the Seven-Day Rate on the Bonds from time
to time upon the request of any Holder of a Bond.
Fixed Rate. At any time that the Bonds bear interest at the Seven-Day
Rate, the Company may elect that the Bonds shall bear interest at the Fixed
Rate, which rate shall be equal to the lesser of (a) the Cap Rate or (b) the
interest rate established in the manner described in this paragraph. The Company
shall give the Trustee, the Placement Agent and the Bank written notice of the
exercise of its option to convert the interest rate borne by the Bonds to the
Fixed Rate, to be received by each of them not fewer than 30 nor more than 60
days prior to the proposed Conversion Date. Such notice shall, if the Company
intends that the Bonds be secured by a Letter of Credit following the proposed
Conversion Date, be accompanied by the documentation required pursuant to the
Lease Agreement. At least 25 days prior to the proposed Conversion Date, the
Placement Agent shall determine the Preliminary Fixed Rate, being that rate
which, taking into account prevailing market conditions as of the date of such
determination and assuming such conditions continue to prevail until and
including such proposed Conversion Date, would result in the market value of the
Bonds on such proposed Conversion Date being 100% of the principal amount
thereof; and on such date shall give telephonic notice, confirmed by Telefax, of
the Preliminary Fixed Rate to the Trustee, the Company and the Bank. From and
after the Conversion Date, the Fixed Rate shall be (x) that rate, at least equal
to the Preliminary Fixed Rate, at which some or all of the Bonds shall have been
remarketed at par, or (y) if no Bonds shall have been so remarketed or all
Holders shall have timely delivered a Non-Tender Notice, the Preliminary Fixed
Rate. Notwithstanding the foregoing, the Fixed Rate shall not become effective
unless (i) there shall have been supplied to the Trustee, the Company and the
Placement Agent at or prior to 10:00 a.m. (prevailing Eastern time) on the
proposed Conversion Date a Non-Taxability Opinion further stating that such
conversion to the Fixed Rate is lawful under applicable law and permitted by the
Indenture, and (ii) if a substitute Letter of Credit is required to be provided,
there shall have been delivered to the Trustee such substitute Letter of Credit
at or prior to 10:00 a.m. (prevailing Eastern time) on the proposed Conversion
Date. If all conditions to the effectiveness of the Fixed Rate shall not have
been met, the Bonds shall continue to bear interest at the Seven-Day Rate from
such proposed Conversion Date until and including the earlier of the date
immediately prior to the Conversion Date or the Maturity Date.
TENDER PROVISIONS
Optional Tender. The Holder of this Bond shall have the right to tender
this Bond to the Tender Agent for purchase in whole or in part (if in part, in
any Authorized Denomination) on any Business Day during the Seven-Day Rate
Period, but not during the Fixed Rate Period, at a purchase price equal to 100%
of the principal amount hereof (or portions hereof) tendered plus accrued
interest to the specified purchase date (the "Optional Tender Date"). In order
to exercise such option with respect to this Bond, the Holder hereof must give
to the Trustee at the Trustee's Office, with a copy to the Tender Agent at the
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Tender Office, at least seven days prior to the proposed Optional Tender Date,
notice (a) by telephone, confirmed by Notice of Tender not more than two
Business Days after such initial notice, or (b) by Notice of Tender. "Notice of
Tender" shall mean written, formal notice of tender in the form attached hereto
as Schedule I or in such other form as shall be acceptable to the Trustee. If
the telephonic notice or the Notice of Tender specifies an Optional Tender Date
that is not a Business Day, then such notice shall be deemed to specify the
Business Day next succeeding the stated Optional Tender Date. Upon the delivery
of Notice of Tender, such election to tender shall be irrevocable and binding
upon the Holder of this Bond. If a Notice of Tender with respect to this Bond
shall have been duly given, the Holder of this Bond shall deliver this Bond to
the Tender Agent at the Tender Office not fewer than five days prior to the
Optional Tender Date (or, if the Holder hereof is an investment company
registered under the Investment Company Act of 1940, at or before 10:00 a.m.
(prevailing Eastern time) on the Optional Tender Date), together with an
instrument of assignment or transfer duly executed in blank (which instrument of
assignment or transfer shall be in the form attached hereto or in such other
form as shall be acceptable to the Tender Agent). At or before 3:00 p.m.
(prevailing Eastern time) on that Optional Tender Date, the Trustee shall cause
the Tender Agent to purchase this Bond so delivered at the aforesaid purchase
price. If this Bond is not so delivered on the Optional Tender Date, provided
the amount on deposit in the Bond Purchase Fund is sufficient to pay the
purchase price of all Bonds to be purchased on such Optional Tender Date, this
Bond shall nevertheless be deemed to have been tendered for purchase by the
Holder hereof on the Optional Tender Date, this Bond shall cease to accrue
interest on the Optional Tender Date and the Holder hereof shall thereafter be
entitled only to payment of the aforesaid purchase price herefor and not to the
benefits of the Indenture.
No tender of this Bond shall be deemed a redemption hereof; and the
right of the Holder to tender this Bond as described in the preceding paragraph
shall cease immediately and without further notice from and including the date
Bonds are declared accelerated, subject, however, to reinstatement upon
rescission and annulment of such declaration, all pursuant to the applicable
provisions of the Indenture.
Mandatory Tender. Subject to the provisions below, the Holder of this
Bond shall be required to tender this Bond to the Tender Agent for purchase on
(a) each proposed Conversion Date, and (b) the first day of the calendar month
in which the Stated Expiration Date of the Letter of Credit occurs, or, if any
of such dates is not a Business Day, the next succeeding Business Day (each such
date being herein referred to as a "Mandatory Tender Date"), all as more fully
provided below.
Notice of a Mandatory Tender shall be given by the Trustee by
first-class mail, postage prepaid, to the Holder of this Bond at his address
appearing on the Register not fewer than 20 days prior to a Mandatory Tender
Date. Such notice shall, among other things, specify the Mandatory Tender Date
and whether or not a Letter of Credit will be in effect during the ensuing
interest rate period. In the case of a Mandatory Tender, the Holder of this Bond
may, by delivery of a written notice (a "Non-Tender Notice") to the Trustee,
with a copy to the Tender Agent, not fewer than five days prior to such
Mandatory Tender Date, elect not to tender or sell this Bond on such Mandatory
Tender Date, which Non-Tender Notice shall be irrevocable. Any such Non-Tender
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Notice must be accompanied by a written statement from the Holder of this Bond
identifying the certificate number and principal amount of this Bond, and
acknowledging that such Holder is aware, if such Mandatory Tender Date is a
proposed Conversion Date, that the Bonds will bear interest from such date at
the Fixed Rate, and that he is aware that effective immediately after the
Mandatory Tender Date the Trustee may or may not draw on the Letter of Credit,
as the case may be, and that if the Trustee does not so draw, the rating or
ratings on the Bonds then in effect may be reduced or withdrawn. Unless the
Holder of this Bond shall have properly delivered a Non-Tender Notice with
respect hereto to the Trustee, with a copy to the Tender Agent, this Bond shall
be tendered for purchase by the Holder hereof by delivering this Bond to the
Tender Agent at the Tender Office at or before 10:00 a.m. (prevailing Eastern
time) on the Mandatory Tender Date, together with an instrument of assignment or
transfer duly executed in blank (which instrument of assignment or transfer
shall be in the form attached hereto or such other form as shall be acceptable
to the Tender Agent). At or before 3:00 p.m. (prevailing Eastern time) on the
Mandatory Tender Date, the Trustee shall cause the Tender Agent to purchase this
Bond (unless the Holder hereof shall have delivered a Non-Tender Notice to the
Trustee, with a copy to the Tender Agent) at a purchase price equal to 100% of
the principal amount hereof plus accrued interest, if any, hereon, and the
Holder of this Bond, by his acceptance hereof, hereby covenants and agrees to
tender this Bond in the manner and at the times as aforesaid. If a Non-Tender
Notice is not properly delivered to the Trustee with respect to this Bond and
this Bond is not tendered at or before 10:00 a.m. (prevailing Eastern time) on
any Mandatory Tender Date, provided the amount on deposit in the Bond Purchase
Fund is sufficient to pay the purchase price of all Bonds to be purchased on
such Mandatory Tender Date, this Bond shall nevertheless be deemed to have been
tendered for purchase by the Holder on the Mandatory Tender Date, this Bond
shall cease to accrue interest on the Mandatory Tender Date and the Holder
hereof shall thereafter be entitled only to payment of the aforesaid purchase
price herefor and not to the benefits of the Indenture.
REDEMPTION PROVISIONS
In the manner and with the effect provided in the Indenture, the Bonds
will be subject to redemption prior to maturity as follows:
(a) Optional Redemption. The Bonds are subject to optional
redemption by the Company on behalf of the Issuer as follows:
(i) during any Seven-Day Rate Period, in whole on any
Business Day or in part (in multiples of $100,000 and any
multiple of $5,000 in excess thereof) on any Interest Payment
Date at a redemption price equal to the principal amount thereof
plus accrued interest to the date of redemption; and
(ii) during the Fixed Rate Period, subject to the written
consent of the provider of the Letter of Credit (if a Letter of
Credit be then in effect), in whole on any Business Day or in
part (in multiples of $100,000 and any multiple of $5,000 in
excess thereof) on any Interest Payment Date on or after the
first permitted redemption date set forth below and at a
redemption price equal to the principal amount thereof plus
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accrued interest to the date fixed for redemption plus the
applicable redemption premium (expressed as a percentage of the
principal amount to be redeemed), if any, set forth below.
First Permitted
Redemption Date Redemption Premium
--------------- ------------------
4th Anniversary 3%, declining by _% on each
of Conversion Date succeeding anniversary of the
Conversion Date until reaching
0%, and thereafter 0%
(b) Extraordinary Optional Redemption. During the Fixed Rate
Period, subject to the written consent of the provider of the Letter of
Credit (if a Letter of Credit be then in effect), the Bonds are subject
to optional redemption (exercised upon direction of the Company on
behalf of the Issuer within 120 days after the occurrence giving rise
to such option) in whole but not in part on any date at a redemption
price equal to 100% of the principal amount thereof plus accrued
interest thereon to the redemption date, if any of the following shall
have occurred:
(i) the Project shall have been damaged or destroyed to
such extent that, in the reasonable opinion of the Company, it
cannot be restored within a period of four months to
substantially the condition thereof immediately prior to such
damage or destruction or the Company is thereby prevented from
carrying on its normal operations at the Project for a period of
not less than four months;
(ii) the taking by eminent domain of all or substantially
all the Project or of any part, use or control of the Project
that, in the reasonable opinion of the Company, results in the
Company being thereby prevented from carrying on its normal
operations at the Project for a period of not less than four
months; or
(iii) as a result of a change in law or a final order of
any court or other governmental authority the Lease Agreement
becomes void or unenforceable or impossible of performance or
unreasonable burdens or excessive liabilities are imposed on the
Company that, in the reasonable opinion of the Company, render
the Project uneconomic for its intended use.
(c) Mandatory Sinking Fund Redemption. The Bonds are subject to
mandatory sinking fund redemption in part, at a redemption price equal
to 100% of the following principal amounts to be so redeemed plus
accrued interest thereon to the redemption date, in amounts of (i)
$80,000 on each Interest Payment Date from June 1, 2000 to March 1,
2004, both inclusive, and (ii) $85,000 on each Interest Payment Date
from June 1, 2004 to December 1, 2011, both inclusive. If retired only
by mandatory sinking fund redemption prior to their stated maturity,
there would remain $85,000 in Bonds to be paid on the Maturity Date.
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The Issuer, or the Company on behalf of the Issuer, shall have
the option to deliver Bonds to the Trustee for cancellation, in any
aggregate principal amount, and to receive a credit against the then
current mandatory sinking fund requirement and corresponding mandatory
redemption obligation for the Bonds. Each Bond so delivered, or
previously redeemed, or purchased and cancelled, shall be credited by
the Trustee at 100% of the principal amount thereof against the then
current mandatory sinking fund obligation. Any excess of that amount
over and then current mandatory sinking fund requirement shall be
credited against subsequent mandatory sinking fund redemption
obligations for the Bonds.
(d) Mandatory Redemption Upon Final Determination. The Bonds are
subject to mandatory redemption in whole and not in part on the 180th
day (or if such day is not a Business Day, on the next preceding
Business Day) following a Final Determination (as hereinafter defined),
at a redemption price equal to 100% of the principal amount thereof,
plus accrued interest thereon to the redemption date. "Determination of
Taxability" means, with respect to the Bonds, a determination that
interest thereon is Taxable because of (i) the receipt by any Holder or
any member of an "affiliated group", as that term is defined in Section
1504 of the Code, of a "30-day letter" within the meaning of Treasury
Regulations Section 601.105(d)(1)(iv) proposing a determination to that
effect; (ii) receipt by the Company of written advice from the
Commissioner or any District Director of the Internal Revenue Service
to that effect; or (iii) receipt by the Trustee or any Holder of a
written opinion of nationally recognized bond counsel that there is
substantial likelihood that such interest is Taxable; subject, however,
in all such cases to the right on the part of the Company set forth in
the Indenture to contest a Determination of Taxability. Upon forfeiture
or termination of such right to contest in accordance with the
Indenture, a Determination of Taxability shall be deemed to become a
"Final Determination".
(e) Mandatory Redemption with Excess Proceeds. The Bonds are
subject to partial mandatory redemption, in an amount equal to the
amount, if any, on deposit in the Construction Fund (or transferred
therefrom into the Bond Fund) as of the redemption date (rounded down
to the nearest multiple of $5,000, but in no event less than $100,000),
on any Interest Payment Date not fewer than 90 days after the
Completion Date, but in no event later than June 1, 2000, at a
redemption price equal to 100% of the principal amount to be redeemed,
plus accrued interest thereon to the redemption date; provided,
however, that such redemption need not be made if the Company delivers
to the Trustee a Non-Taxability Opinion in respect of such
non-redemption. As used herein, "Completion Date" means the date of
substantial completion of the Project, as certified by the Company in
accordance with the provisions of the Lease Agreement.
(f) Notice of Redemption; Partial Redemption. The notice of the
call for redemption of Bonds shall identify (i) by designation,
letters, numbers or other distinguishing marks, the Bonds or portions
thereof to be redeemed, (ii) the redemption price to be paid, (iii) the
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date fixed for redemption, and (iv) the place or places where the
amounts due upon redemption are payable. The Trustee shall, on behalf
of the Issuer, give written notice by first-class mail, postage
prepaid, of any redemption not more than 60 nor less than 20 days prior
to the date fixed for redemption, to the Holder of each Bond subject to
redemption in whole or in part at the Holder's address shown on the
Register as of the 15th day preceding that mailing; provided, that
failure to receive notice by mailing, or any defect in that notice, as
to any Bond shall not affect the validity of the proceedings for the
redemption of any Bond for which notice is properly given. If fewer
than all the Bonds are being called for redemption at one time, the
Trustee shall select the Bond or Bonds to be so redeemed by lot. If
less than the entire principal amount of a Bond is called for
redemption, the Holder thereof shall exchange the same, without charge,
for a new Bond or Bonds in any Authorized Denomination in aggregate
principal amount equal to the unredeemed portion of the Bond so called.
MISCELLANEOUS
The Holder of this Bond shall have no right to enforce the provisions
of the Indenture or to institute action to enforce the covenants therein, or to
take any action with respect to any default under the Indenture, or to
institute, appear in or defend any suit or other proceedings with respect
thereto, except as provided in the Indenture.
Modifications, alterations or supplements of the Indenture may be made
only to the extent and in the circumstances permitted by the Indenture.
If an Event of Default, as defined in the Indenture, shall occur, the
principal of the Bonds then outstanding may, subject to the conditions set forth
in the Indenture, be declared due and payable in the manner and with the effect
provided by the Indenture; subject, however, to waiver of such Event of Default
or rescission of such declaration as provided in the Indenture.
The Bonds are issuable only as fully registered bonds in denominations
of $100,000 and any integral multiple of $5,000 in excess thereof. The Bonds are
exchangeable for Bonds of other Authorized Denominations in equal aggregate
principal amounts at the aforementioned office of the Registrar, but only in the
manner and subject to the limitations provided herein and in the Indenture.
This Bond is transferable, as provided in the Indenture, only upon the
Register by the Holder hereof in person or by his duly authorized attorney, upon
surrender of this Bond to the Registrar together with a written instrument of
transfer satisfactory to the Registrar duly executed by the Holder or his duly
authorized attorney, and upon payment of the charges prescribed in the
Indenture.
Neither the Issuer, the Registrar nor any Authenticating Agent, as the
case may be, shall be required to make any exchange or transfer of a Bond during
a period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Bonds and ending at the close of business
on the day of such mailing or to transfer or exchange any Bonds selected for
redemption, in whole or in part.
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This Bond shall not be valid or become obligatory for any purpose or be
entitled to any security or benefit under the Indenture until the Certificate of
Authentication hereon shall have been duly signed.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts, conditions
and things required to exist, happen and be performed precedent to and in the
issuance of the Bonds do exist, have happened and have been performed in due
time, form and manner as required by law.
IN WITNESS OF THE ABOVE, The Industrial Development Board of the City
of Montgomery has caused this Bond to be duly executed under its corporate seal,
all as of the Issue Date.
THE INDUSTRIAL DEVELOPMENT BOARD OF THE
CITY OF MONTGOMERY
( S E A L )
By:____________________________________
Chairman of the Board of Directors
ATTEST:
______________________________
[Assistant] Secretary
CERTIFICATE OF AUTHENTICATION
Date of Authentication: ____________________________
This Bond constitutes the issue of Bonds described in the
within-mentioned Indenture.
REGIONS BANK, as Authenticating Agent
By:____________________________________
Authorized Signatory
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ASSIGNMENT
The following abbreviations, when used in the inscription on this Bond
or in the Assignment below, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - AS TENANTS IN COMMON
TEN ENT - AS TENANTS BY THE ENTIRETIES
JT TEN - as joint tenants with right of survivorship and not as
tenants in common and not as community property
UNIF TRAN MIN ACT - ______________ Custodian _____________
(Custodian) (Minor)
under Uniform Transfers to Minors Act _______
(State)
Additional abbreviations may also be used although not in the above
list.
ASSIGNMENT
For value received, the undersigned hereby sells, assigns and transfers
unto ___________________________ the within Bond and irrevocably constitutes and
appoints __________________________ attorney to transfer that Bond on the books
kept for registration thereof, with full power of substitution in the premises.
Dated:___________________________
_______________________________________________
NOTICE: The assignor's signature to
this assignment must correspond with
the name as it appears upon the face
of the within Bond in every
particular, without alteration or any
change whatever.
Signature Guaranteed:
_________________________________
(Bank, Broker or Firm*)
By_______________________________
Its______________________________
Medallion Number: ______________________________________________________________
*Signature(s) must be guaranteed by an eligible guarantor institution which is a
member of a recognized signature guarantee program, i.e., Securities Transfer
Agents Medallion Program (STAMP), Stock Exchanges Medallion Program (SEMP), or
New York Stock Exchange Medallion Signature Program (MSP).
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Schedule I
Bondholder Tender Notice
------------------------
The undersigned hereby elects to have the within Bond numbered ______
(the "Bond") of the Issuer (or any portion thereof in any integral multiple of
$100,000 and any multiple of $5,000 in excess thereof) purchased in accordance
with the provisions of the Bond and the Trust Indenture dated as of December 1,
1996, as amended and supplemented by a First Supplemental Trust Indenture dated
as of March 1, 1997 (collectively, the "Indenture"), both between The Industrial
Development Board of the City of Montgomery (the "Issuer") and Regions Bank (the
"Trustee") , on _____________________ (the "Optional Tender Date"), which
Optional Tender Date shall be a Business Day (as defined in the Indenture) at
least seven days immediately following the submission of this Bondholder Tender
Notice to the Trustee, with a copy to the Tender Agent (as defined in the
Indenture); provided, however, that if the undersigned shall have initially
given telephonic notice to the Trustee of its election to tender the Bond, the
Optional Tender Date shall be a Business Day at least seven days immediately
following the date of such telephonic notice. The purchase price upon such
tender shall equal 100% of the principal amount of the Bond (or portion thereof)
being purchased plus accrued interest thereon to the Optional Tender Date (the
"Purchase Price").
Pursuant to the terms of the Indenture, the Purchase Price of the Bond
(or portion thereof) to be purchased shall be paid to the Holder of the Bond in
federal or other immediately available funds, as provided in the Indenture, at
or before 3:00 p.m. (prevailing Eastern time) on the Optional Tender Date upon
presentation, not fewer than five (5) days prior to the Optional Tender Date at
the Tender Office designated in the Indenture, of the Bond, together with an
instrument of assignment or transfer duly executed in blank (which instrument of
assignment or transfer shall be in the form provided in the Bond or in such
other form acceptable to the Tender Agent). However, if the undersigned is an
investment company registered under the Investment Company Act of 1940 and
submits proof thereof along with this Notice, then the undersigned may present
this Bond at said Tender Office, together with an instrument of assignment or
transfer as hereinabove described, at or before 10:00 a.m. on the Optional
Tender Date. The undersigned hereby acknowledges and agrees to such terms.
This Bondholder Tender Notice shall not be accepted by the Trustee
unless it is properly completed and received by the Trustee at its principal
corporate trust office.
If the Bond is submitted for purchase in part, the undersigned hereby
directs the Tender Agent to exchange the Bond for (i) a Bond representing the
principal amount of the Bond to be purchased, and, if applicable, (ii) a Bond
(or Bonds of Authorized Denominations, as defined and provided for in the
Indenture, if the owner specifies such Denominations) representing the principal
amount of the Bond not to be purchased. The Bond or Bonds not to be purchased
shall be registered in the same name(s) as the Bond tendered for purchase.
Unless the Holder of the Bond delivers instructions to the Trustee with this
Bondholder Tender Notice, specifying that such Holder wishes to have the Tender
Agent deliver more than one Bond representing the principal amount of the Bond
not to be purchased, and specifying the denominations of such replacement Bonds,
the Tender Agent will deliver only one replacement Bond to such Holder in the
principal amount of the Bond not to be purchased.
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THIS ELECTION IS IRREVOCABLE AND BINDING ON THE UNDERSIGNED AND CANNOT
BE WITHDRAWN.
The undersigned hereby authorizes the Trustee to accept on behalf of
the undersigned the Purchase Price of the Bond (or portion thereof) subject to
this Bondholder Tender Notice.
Print or Type: __________________________________________________________
Name(s) of Bondholder(s)
__________________________________________________________
Street City State Zip
__________________________________________________________
Area Code Telephone Number
Signature(s): __________________________________________________
Date: __________________________________________________
Note: The signature(s) to this Bondholder Tender Notice must correspond
exactly to the name(s) appearing on the Register (as defined in
the Indenture) in every particular, without alteration or
enlargement or any change whatsoever.
The principal amount of the Bond subject to this notice of tender for
purchase is:
$_________________________________________________.
(INSERT TOTAL PRINCIPAL AMOUNT OF BOND OR A PORTION
THEREOF IN THE AMOUNT OF $100,000 OR ANY INTEGRAL
MULTIPLE THEREOF AND ANY MULTIPLE OF $5,000 IN
EXCESS THEREOF.)
IF NO AMOUNT IS INDICATED IN THE SPACE ABOVE, THE OWNER OF THE BOND SUBJECT TO
THIS BONDHOLDER TENDER NOTICE WILL BE DEEMED TO HAVE TENDERED THE BOND IN ITS
FULL PRINCIPAL AMOUNT FOR PURCHASE.
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