EXHIBIT 10.2
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FIRST SUPPLEMENTAL LEASE AGREEMENT
BETWEEN
THE INDUSTRIAL DEVELOPMENT BOARD OF THE
CITY OF XXXXXXXXXX
AND
KINPAK INC.
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RELATING TO
THE INDUSTRIAL DEVELOPMENT BOARD OF THE
CITY OF XXXXXXXXXX
$4,000,000 INDUSTRIAL REFUNDING REVENUE BONDS
(KINPAK INC. PROJECT) SERIES 1997
$990,000 INDUSTRIAL REFUNDING REVENUE BONDS
(KINPAK INC. PROJECT) SERIES 1996B
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DATED
AS OF
MARCH 1, 1997
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XXX X. XXXXXXXXXX, P.C.
MONTGOMERY, ALABAMA
BOND COUNSEL
THIS INSTRUMENT AMENDS AND SUPPLEMENTS THAT CERTAIN RESTATED LEASE AGREEMENT,
DATED AS OF DECEMBER 1, 1996 AND RECORDED IN THE OFFICE OF THE JUDGE OF PROBATE
OF XXXXXXXXXX COUNTY, ALABAMA, IN RLPY BOOK 1718, PAGE 621, BETWEEN THE
INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF XXXXXXXXXX AS LESSOR AND KINPAK INC.
AS LESSEE. CERTAIN RIGHTS OF THE BOARD UNDER SAID LEASE AGREEMENT, AS AMENDED
AND SUPPLEMENTED HEREBY, HAVE BEEN ASSIGNED TO REGIONS BANK, AS TRUSTEE,
PURSUANT TO A TRUST INDENTURE DATED AS OF DECEMBER 1, 1996 AND RECORDED IN SAID
PROBATE OFFICE IN RLPY BOOK 1718, PAGE 679, AS AMENDED AND SUPPLEMENTED BY A
FIRT SUPPLEMENTAL TRUST INDENTURE OF EVEN DATE HEREWITH.
FIRST SUPPLEMENTAL LEASE AGREEMENT
BETWEEN
THE INDUSTRIAL DEVELOPMENT BOARD
OF THE CITY OF XXXXXXXXXX
AND
KINPAK INC.
INDEX
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Page
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PARTIES.......................................................................1
RECITALS......................................................................1
Section 1. Definitions.......................................................2
Section 2. Interpretation....................................................3
Section 3. Captions and Headings.............................................4
Section 4. Representations by the Issuer.....................................4
Section 5. Representations and Covenants by the Company - General............4
Section 6. Representations and Covenants by the Company - Tax-Related........4
Section 7. Actions Under Section 144(a)(4) of the Code.......................7
Section 8. Agreement to Issue Series 1997 Bonds; Application of Proceeds.....8
Section 9. Exclusion from Gross Income.......................................8
Section 10. Rebate Fund Calculations & Payments...............................9
Section 11. Investment of Fund Moneys.........................................9
Section 12. Depreciation Method..............................................10
Section 13. Effect on Original Lease.........................................10
Section 14. Execution Counterparts...........................................10
SIGNATURES...................................................................11
ACKNOWLEDGMENTS..............................................................12
CONSENT OF TRUSTEE...........................................................13
CONSENT OF BANK..............................................................14
EXHIBIT A - Description of Leased Realty
i
STATE OF ALABAMA )
XXXXXXXXXX COUNTY )
FIRST SUPPLEMENTAL LEASE AGREEMENT
This FIRST SUPPLEMENTAL LEASE AGREEMENT made and entered into as of
March 1, 1997 (this "First Supplemental Lease") , between THE INDUSTRIAL
DEVELOPMENT BOARD OF THE CITY OF XXXXXXXXXX, its successors and assigns (the
"Issuer"), a public corporation organized under the laws of the State of Alabama
(the "State"), and KINPAK INC. (formerly known as Kinbright, Inc.), an Alabama
corporation, its successors and assigns (the "Company"), under the circumstances
summarized in the following recitals (the capitalized terms not defined in the
recitals being used therein as defined in Article I hereof or, if not otherwise
defined herein, in the Original Lease hereinafter mentioned, which definitions
are hereby incorporated by reference herein):
A. The Issuer has been heretofore organized under and is authorized by
the Act to acquire, enlarge, improve, expand, own, lease, and dispose of
properties to the end that the Issuer may be able to promote industry and
develop trade by inducing manufacturing, industrial, commercial and research
enterprises to locate in the State, or to enlarge and expand existing
enterprises, or both, and further the use of the agricultural products and
natural resources of the State.
B. On October 17, 1979, the Issuer issued the Prior Bonds pursuant to
the Act and applied the proceeds thereof to acquire, construct and equip the
Existing Facilities. On December 20, 1996, the Issuer issued inter alia the
Series 1996A Bonds pursuant to the Act and the Original Indenture, the proceeds
of which were to be applied (1) to renovate and upgrade the Existing Facilities
and (2) to acquire, construct and equip the New Facilities. The Old Facilities
and the New Facilities (collectively, and as more fully described in the
Original Lease, the "Project") are situated on the Leased Realty as described in
Exhibit A hereto.
C. In the Original Lease and the Original Indenture, the Issuer agreed
to issue the Refunding Obligations in order to refund the Series 1996A Bonds,
such issuance and refunding to occur as soon as all of the requirements of the
Code to assure the non-Taxable status of the Refunding Obligations could be
satisfied, including without limitation the requirement of obtaining an
allocation of the State ceiling for private activity bonds (an "Allocation").
D. The Issuer has on January 8, 1997 received an Allocation in the
amount of $4,000,000, allowing the issuance on a non-Taxable basis of Refunding
Obligations in such amount, being equal to the outstanding amount of the Series
1996A Bonds.
E. The Issuer has adopted the Bond Resolution providing for the
issuance of the Series 1997 Bonds and for the amending and supplementing of the
Original Lease, to be accomplished hereby, and of the Original Indenture, to be
accomplished by the First Supplemental Indenture to be entered into
simultaneously herewith.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties to this First Supplemental Lease hereby
formally covenant, agree and bind themselves as follows:
Section 1. Definitions. In addition to the words and terms elsewhere
defined in this First Supplemental Lease or the Original Lease, or by reference
to the Indenture or other document, unless the context or use clearly indicates
another or different meaning or intent:
"Bond" or "Bonds" means, collectively, the Series 1996B Bonds and the
Series 1997 Bonds.
"Bond Fund" means, individually or collectively, as the context may
require, the Bond Fund in respect of the Series 1996B Bonds created in the
Original Indenture and/or the Bond Fund in respect of the Series 1997 Bonds
created in the First Supplemental Indenture.
"Bond Purchase Fund" means, individually or collectively, as the
context may require, the Bond Purchase Fund in respect of the Series 1996B Bonds
created in the Original Indenture and/or the Bond Purchase Fund in respect of
the Series 1997 Bonds created in the First Supplemental Indenture.
"Bond Resolution" means the resolution adopted by the Board of
Directors of the Issuer on January 22, 1997 authorizing the issuance of the
Series 1997 Bonds and the execution and delivery of the Issuer Documents and
related documents.
"Company Documents" means, individually or collectively, as the context
may require, each or all of this First Supplemental Lease, the Company's consent
to the First Supplemental Indenture, such amendments and/or supplements to the
Reimbursement Agreement, the Placement Agency Agreement, the Remarketing
Agreement, the Mortgage, the Assignment and the Pledge Agreement as the Bank may
deem necessary or desirable in connection with the issuance of the Series 1997
Bonds, and such other documents or instruments as the Company may enter into in
order to consummate the transactions contemplated hereby and thereby.
"Construction Fund" means the Construction Fund created in the First
Supplemental Indenture.
"First Supplemental Indenture" means the First Supplemental Trust
Indenture, dated as of the first day of the month in which the Issue Date
occurs, between the Issuer and the Trustee, amending and supplementing the
Original Indenture in connection with the issuance of the Series 1997 Bonds.
"Indenture" means the Original Indenture, as amended and supplemented
by the First Supplemental Indenture and as the same may hereafter be further
amended and supplemented.
"Initial Letter of Credit" means the Letter of Credit issued by the
Bank and delivered to the Trustee on December 20, 1996, as the same has been
modified in connection with the issuance of the Series 1997 Bonds.
"Issue Date" means the date of the initial authentication and delivery
of the Series 1997 Bonds.
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"Issuer Documents" means, individually or collectively, as the context
may require, each or all of this First Supplemental Lease, the First
Supplemental Indenture, such amendments and/or supplements to the Placement
Agency Agreement, the Mortgage and the Assignment as the Bank may deem necessary
or desirable in connection with the issuance of the Series 1997 Bonds, and such
other documents as the Issuer may enter into in order to consummate the
transactions contemplated hereby and thereby.
"Lease Agreement" means the Original Lease, as amended and supplemented
by this First Supplemental Lease and as the same may hereafter be further
amended and supplemented.
"Original Indenture" means the Trust Indenture dated as of December 1,
1996 between the Issuer and the Trustee.
"Original Lease" means the Restated Lease Agreement dated as of
December 1, 1996 between the Issuer and the Company.
"Placement Memorandum" means the Private Placement Memorandum to be
dated on or before the Issue Date pertaining to the private placement of the
Bonds.
"Rebate Fund" means, individually or collectively, as the context may
require, the Rebate Fund in respect of the Series 1996B Bonds created in the
Original Indenture and/or the Rebate Fund in respect of the Series 1997 Bonds
created in the First Supplemental Indenture.
"Refunding Fund" means the Refunding Fund created in the First
Supplemental Indenture.
Section 2. Interpretation. The provisions of Section 1.2 of the
Original Lease are hereby ratified and reaffirmed, except that, unless the
context indicates otherwise, the terms "hereof", "hereby", "herein", "hereto",
"hereunder" and similar terms refer to this First Supplemental Lease; and the
term "hereafter" means after, and the term "heretofore" means before, the
effective date of this First Supplemental Lease.
All references in the Original Indenture and the Original Lease to the
Refunding Obligations shall be construed to refer to the Series 1997 Bonds,
which are and constitute the Refunding Obligations; and references in the
Original Lease to the Refunding Date shall be construed to refer to the Issue
Date (as herein defined).
Section 3. Captions and Headings. The captions and headings in this
First Supplemental Lease are solely for convenience of reference and in no way
define, limit or describe the scope or intent of any Articles, Sections,
subsections, paragraphs, subparagraphs or clauses hereof.
Section 4. Representations by the Issuer. The Issuer ratifies and
reaffirms the representations on its part set forth in Section 2.1 of the
Original Lease, which are hereby incorporated by reference herein, except that
references therein to "Issuer Documents" shall be construed, for purposes of
this First Supplemental Lease, to mean "Issuer Documents" as herein defined.
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Section 5. Representations and Covenants by the Company - General. The
Company ratifies and reaffirms the representations on its part set forth in
Section 2.2 of the Original Lease, which are hereby incorporated by reference
herein, except that references therein to "Company Documents" shall be
construed, for purposes of this First Supplemental Lease, to mean "Company
Documents" as herein defined.
Section 6. Representations and Covenants by the Company - Tax-Related.
The Company ratifies and reaffirms the representations on its part set forth in
Section 2.3 of the Original Lease regarding the Series 1996B Bonds, which are
hereby incorporated by reference herein. The Company acknowledges that the
proceeds of the Series 1997 Bonds, which are being applied to refund the Series
1996A Bonds, are also treated conceptually as being applied to the purposes
financed or to be financed by the proceeds of the Series 1996A Bonds, and
therefore that the non-Taxable status of the Series 1997 Bonds is in part
dependent on the continuing compliance, before and after the Issue Date, on the
part of the Series 1996A Bonds with certain requirements and provisions of the
Code. As such, the Company hereby incorporates by reference herein the
representations and statements contained in Section 2.4 of the Original Lease
relating to the Series 1996A Bonds, reaffirms the accuracy and completeness
thereof, represents that it has complied and will comply with the
representations and covenants therein, and further represents or reiterates
that:
(a) The acquisition and renovation of the Existing Facilities
and the acquisition and construction of the New Facilities were not
commenced (within the meaning of Section 144 of the Code) prior to
February 20, 1996, being the date of adoption by the Issuer of the
Inducement Resolution.
(b) Ninety-five percent (95%) or more of the net proceeds
(within the meaning of the Code) of the Series 1996A Bonds were
intended to be, and ninety-five percent (95%) or more of such net
proceeds of the Series 1997 Bonds will be, used (i) for the
acquisition, construction, reconstruction or improvement of land or
property of a character subject to the allowance for depreciation
within the meaning of Section 144(a)(1) of the Code and (ii) to provide
a "manufacturing facility" and facilities "directly related and
ancillary" thereto, all within the meaning of Section 144(a)(12)(C) of
the Code; provided that no proceeds expended or to be expended to pay
Issuance Costs in respect of the Series 1996A Bonds or the Series 1997
Bonds were or will be counted as being within such 95%. The Company has
not requested or authorized and will not request or authorize any
disbursement pursuant to Section 4.1 of the Original Lease, which, if
paid, resulted or would result in less than 95% of such proceeds of the
Series 1996A Bonds or the Series 1997 Bonds, respectively, being so
used.
(c) Not more than 25% of the net proceeds of the Series 1996A
Bonds were, and not more than 25% of such proceeds of the Series 1997
Bonds will be, used to provide such "directly related and ancillary"
facilities, as referred to in subsection (b) of this Section 6, and all
such facilities have been and shall be located on the same site as the
"manufacturing facility" referred to in said subsection (b).
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(d) Any office space financed with proceeds of the Series 1996A
Bonds or to be financed with proceeds of the Series 1997 Bonds is
located within the Building constituting part of the Project, and not
more than a de minimis amount of the functions to be performed in such
space is not directly related to the day-to-day operations at the
Project.
(e) Other than the Series 1996B Bonds, there have never been
issued any "issues of bonds" with respect to "facilities", both as
described in Section 144(a)(2) of the Code, (i) which facilities are to
be or have been used by the Company or any other "principal user" of
the Project or any "related person" to the Company or such other
"principal user", as such terms are used and defined in Sections
144(a)(2)(B) and 144(a)(3) of the Code, respectively, and which are
located within the incorporated area of the City; and (ii) which issues
of bonds had to be taken into account in determining the aggregate face
amount of the Series 1996A Bonds, or would have to be taken into
account in determining the aggregate face amount of the Series 1997
Bonds, in either case as provided in Section 144(a)(2) of the Code.
(f) For each "test-period beneficiary" (as defined in Section
144(a)(10)(D) of the Code, and including any "related person" thereto)
of the Project, the sum of (1) the aggregate authorized face amount of
the Series 1997 Bonds allocated in accordance with Section
144(a)(10)(C) of the Code to such beneficiary, and (2) the aggregate
outstanding principal amount of any other tax-exempt facility-related
bonds as described in Section 144(a)(10)(B)(ii) of the Code, wherever
and whenever issued, allocated to such beneficiary, does not exceed
$40,000,000.
(g) The Series 1996A Bonds were not, and the Series 1997 Bonds
are not being, issued to finance facilities which are within or part of
"a single building, an enclosed shopping mall or a strip of offices,
stores, or warehouses using substantial common facilities" (within the
meaning of Section 144(a)(9) of the Code), any other facilities within
or part of which have heretofore been financed with obligations issued
and still outstanding under Section 144(a) of the Code or under prior
Section 103(b)(6) of the 1954 Code.
(h) In accordance with Section 147(b) of the Code, the average
maturity of the Series 1996A Bonds did not, and the average maturity of
the Series 1997 Bonds does not, exceed 120% of the average reasonably
expected economic life of the facilities being financed thereby.
(i) None of the proceeds of the Series 1996A Bonds were, and
none of the proceeds of the Series 1997 Bonds will be, used to provide
any airplane, skybox or other private luxury box, any health club
facility, any facility primarily used for gambling, or any store the
principal business of which is the sale of alcoholic beverages for
consumption off premises; or any private or commercial golf course,
country club, massage parlor, tennis club, skating facility (including
roller skating, skateboard and ice skating), racquet sports facility
(including handball or racquetball court), hot tub facility, suntan
facility or racetrack.
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(j) None of the net proceeds of the Series 1996A Bonds were, and
none of such proceeds of the Series 1997 Bonds will be, used (i) to
provide a facility the primary purpose of which is retail food and
beverage services (except grocery stores), automobile sales or service,
or the provision of recreation or entertainment; or (ii) directly or
indirectly to provide residential real property within the meaning of
Section 144(a)(5) of the Code; less than 25% of such net proceeds were
or will be used (directly or indirectly) for the acquisition of land
(or any interest therein); and none of such net proceeds were or will
be used (directly or indirectly) for the acquisition of land (or any
interest therein) for farming purposes within the meaning of Section
147 of the Code.
(k) No portion of the proceeds of the Series 1996A Bonds were,
and no portion of the proceeds of the Series 1997 Bonds will be, used
to acquire existing property or any interest therein unless such
acquisition meets the rehabilitation requirements of Section 147(d) of
the Code.
(l) In accordance with Section 147(g) of the Code, not more than
two percent (2%) of the proceeds of the Series 1996A Bonds were applied
to pay Issuance Costs in respect of the Series 1996A Bonds or the
Series 1996B Bonds, and the Company represents that any such Issuance
Costs in excess of such limitation were paid from funds other than
Series 1996A Bond proceeds.
(m) The Series 1996A Bonds were not, and the Series 1997 Bonds
are not, "federally guaranteed" within the meaning of Section 149(b) of
the Code.
(n) Other than the Bond Fund, it is not anticipated, as of the
Issue Date, that there will be created any "sinking fund" or "pledged
fund", both within the meaning of Section 1.148-1(c) of the Treasury
Regulations, with respect to the Series 1997 Bonds; and the moneys in
the Bond Fund and in any other such sinking fund or pledged fund that
is deemed to have been created will be invested in compliance with
Section 148 of the Code.
(o) The information furnished by the Company and used by the
Issuer in preparing, with respect to the Series 1997 Bonds, the
certification pursuant to Section 148 of the Code and the information
statement pursuant to Section 149(e) of the Code is accurate and
complete as of the Issue Date.
(p) After the expiration of any applicable temporary period
under Section 148(d)(3) of the Code, at no time during any Bond Year
will the aggregate amount of gross proceeds of the Series 1997 Bonds
invested in higher yielding investments exceed 150% of the debt service
on the Series 1997 Bonds for such Bond Year. The aggregate amount of
gross proceeds of the Series 1997 Bonds invested in higher yielding
investments, if any, will be promptly and appropriately reduced as the
amount of outstanding Series 1997 Bonds is reduced; provided, however,
that the foregoing shall not require the sale or disposition of any
higher yielding investments if such sale or disposition would result in
a loss in excess of the amount which, had a payment to the United
States pursuant to Section 407 of the Original Indenture then been due,
would have been so payable but for such sale or disposition.
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The Company will not pay or agree to pay to a party, other than the
United States, any portion of the Excess Earnings (computed as of the
most recent prior Computation Date) through a transaction that reduces
the aggregate amount earned on all nonpurpose investments in which
gross proceeds of the Series 1997 Bonds are invested or that results in
a smaller profit or a larger loss than would have resulted in an arm's
length transaction in which the yield on the nonpurpose investment was
not subject to any restriction.
The terms "bond year", "gross proceeds", "higher yielding investments",
"yield" and "debt service" have the meanings assigned to them for
purposes of said Section 148.
(q) All of the net proceeds of the Series 1997 Bonds will be
used exclusively to retire the Series 1996A Bonds within 90 days of the
Issue Date.
Section 7. Actions Under Section 144(a)(4) of the Code. The Issuer is
issuing the Series 1997 Bonds pursuant to an election made by it in the Bond
Resolution, at the Company's request, under Section 144(a)(4) of the Code. In
connection with that election, the Company represents and covenants that:
(a) The sum of:
(i) the principal amount of the Series 1997 Bonds,
(ii) the outstanding face amount of the any other "issues
of bonds", as referred to in Section 6(e) hereof, and
(iii) the amount of capital expenditures ("Capital
Expenditures") with respect to "facilities" (as defined in
Section 144(a)(4)(B) of the Code) located within the
incorporated area of the City, other than capital expenditures
(A) mentioned in Section 144(a)(4)(C) of the Code,
or
(B) financed or to be financed from the proceeds of
the Series 1997 Bonds or the other "issues of bonds", to
the extent such other issues are outstanding, referred to
in clause (ii) hereof,
made during the three-year period preceding the Issue Date,
does not exceed $10,000,000.
(b) During the three-year period following the Issue Date, the
Company shall not make or cause or permit to be made Capital
Expenditures in an amount which would cause the interest on the Series
1997 Bonds to become Taxable.
(c) In the event, on account of a sublease, management contract
or other agreement relating to the Project, or any portion thereof,
permitted by the terms of the Lease Agreement and of the Mortgage, any
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Person other than the Company becomes a "principal user" of the Project
(as referred to in Section 6(e) hereof), the Company shall promptly
advise the Trustee of the identity of such Person and furnish to the
Trustee a copy of such sublease, management contract or other
agreement. In connection with any such sublease, management contract or
other agreement, the Company will require by covenant that any
sublessee, manager or user who is a "principal user" of the Project and
any "related person" thereto also shall comply with the covenants set
forth in subsections (b) and (c) of this Section and in subsections (i)
and (j) of Section 6 hereof as if those covenants were made herein by
such sublessee, manager, user or "related person" thereto, and will
require that any such "principal user" who is a "test-period
beneficiary" with respect to the Project (as referred to in Section
6(f) hereof) shall, prior to its becoming such "principal user", make
to the Company and the Trustee the representation set forth in said
Section 6(f) as to itself and any "related person" thereto.
Section 8. Agreement to Issue Series 1997 Bonds; Application of
Proceeds. In order to provide moneys to refund the Series 1996A Bonds, the
Issuer will proceed as promptly as practicable with the issuance and sale of the
Series 1997 Bonds in the aggregate principal amount of $4,000,000, bearing
interest, maturing and having the other terms and provisions set forth in the
Indenture. The proceeds of sale of the Series 1997 Bonds shall be deposited in
the Refunding Fund, for immediate application to the redemption of the Series
1996A Bonds. On the Issue Date, the Trustee shall draw on the Letter of Credit,
in accordance with the provisions thereof and of the Indenture, in an amount
sufficient to pay accrued interest on the Series 1996A Bonds to such redemption
date. The proceeds of sale of the Series 1996A Bonds, which were deposited in
the Construction Fund created under the Original Indenture, shall be transferred
and deposited in the Construction Fund created under the First Supplemental
Indenture, for application to pay or reimburse the prior payment of Project
Costs as in the Lease Agreement and the Indenture provided.
Section 9. Exclusion from Gross Income. The Company hereby represents
that it has taken and caused to be taken, and covenants that it will take and
cause to be taken, all actions that may be required of it, alone or in
conjunction with the Issuer, for the interest on the Series 1997 Bonds to be and
remain excluded from gross income for federal income tax purposes, and
represents that it has not taken or permitted to be taken on its behalf, and
covenants that it will not take or permit to be taken on its behalf, any actions
that would adversely affect such exclusion under the provisions of the Code.
Section 10. Rebate Fund Calculations and Payments. Within 20 days after
each Computation Date, the Company shall calculate with respect to the Series
1997 Bonds the amount of Excess Earnings as of that Computation Date and shall
notify the Trustee of that amount, whereupon the Trustee shall notify the
Company in writing of the amount then on deposit in the Rebate Fund. If the
amount then on deposit in the Rebate Fund created under the First Supplemental
Indenture is less than the amount of Excess Earnings (computed by taking into
account the amount or amounts, if any, previously paid to the United States
pursuant to Section 407 of the Original Indenture and this Section), the Company
shall, within five days after the date of the aforesaid notice, pay to the
Trustee for deposit in the Rebate Fund an amount sufficient to cause the Rebate
Fund to contain an amount equal to the Excess Earnings (computed as aforesaid);
provided no such payment shall be required with respect to earnings on a bona
fide debt service fund during any Bond Year when the gross earnings on such fund
during the Bond Year were less than $100,000. The obligation of the Company to
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make such payments shall remain in effect and be binding upon the Company
notwithstanding the release and discharge of the Indenture or the termination of
the Lease Agreement.
Notwithstanding the foregoing, the provisions of this Section 10 and
Section 407 of the Original Indenture shall not apply if and to the extent that
the Issuer, the Company and the Trustee receive a Non-Taxability Opinion
regarding the failure to comply therewith.
Section 11. Investment of Fund Moneys. At the written direction of the
Company, any moneys held as part of the Bond Fund and the Bond Purchase Fund
(except for moneys therein (i) held pursuant to Section 403 of the Original
Indenture, (ii) to pay Unsurrendered Bonds (as defined in the Original
Indenture) or (iii) representing proceeds of a drawing under the Letter of
Credit, which moneys shall be either held in cash and not invested or invested
only in Government Obligations with a maturity of not to exceed 30 days or
fewer, as needed), the Rebate Fund and the Construction Fund shall be invested
or reinvested by the Trustee in Eligible Investments (as defined in the Original
Indenture). The Company will not issue, or permit to be issued on its behalf,
any instructions for the investments of any moneys in the Construction Fund, the
Rebate Fund, the Bond Purchase Fund or the Bond Fund if, as a result of any such
investment being made in accordance therewith, the Series 1997 Bonds would be
considered "arbitrage bonds" within the meaning of Section 148 of the Code or
"hedge bonds" within the meaning of Section 149(g) of the Code. Additionally,
the Issuer and the Company will continually comply with all provisions of the
Code necessary in order to prevent the Series 1997 Bonds from being considered
"arbitrage bonds" within the meaning of Section 148 of the Code or "hedge bonds"
within the meaning of Section 149(g) of the Code.
Any officer of the Issuer having responsibility for issuing the Series
1997 Bonds, in conjunction with the Company or any officer, employee or agent of
or consultant to the Company, shall give an appropriate certificate of the
Issuer pursuant to said Section 148 of the Code, for inclusion in the transcript
of proceedings for the Series 1997 Bonds, setting forth the reasonable
expectations of the Issuer as of the Issue Date regarding the amount and use of
the proceeds of the Series 1997 Bonds and the facts, estimates and circumstances
on which those expectations are based. The Company shall provide the Issuer
with, and the Issuer's certificate may be premised on, a certificate of an
appropriate officer, employee or agent of or consultant to the Company setting
forth the reasonable expectations of the Company as of the Issue Date regarding
the amount and use of the proceeds of the Series 1997 Bonds and the facts,
estimates and circumstances on which those expectations are based.
Section 12. Depreciation Method. The Company acknowledges that it is
aware of the provisions of Section 168(g) of the Code and that it will comply
with said provisions, if and to the extent the same are applicable.
Section 13. Effect on Original Lease. Except as hereby amended and
supplemented, all other provisions of the Original Lease are hereby ratified and
reaffirmed.
Section 14. Execution Counterparts. This First Supplemental Lease may
be simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
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[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Issuer and the Company have caused this First
Supplemental Lease to be duly executed and their respective corporate seals to
be hereunto affixed and attested, all as of the date first hereinabove set
forth.
THE INDUSTRIAL DEVELOPMENT BOARD OF
THE CITY OF XXXXXXXXXX
( S E A L )
By: /s/ R. E. Xxxxxxxx, Jr.
-----------------------------------
Chairman of its Board of Directors
ATTEST:
/s/ [Illegible]
----------------------
[Assistant] Secretary
KINPAK INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
President
WITNESS:
/s/ [Illegible]
----------------------
Assistant Secretary
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ACKNOWLEDGMENT OF ISSUER
------------------------
STATE OF ALABAMA )
MONTGOMERY COUNTY )
I, the undersigned Notary Public in and for said County in said State,
hereby certify that R. E. Xxxxxxxx, Jr., whose signature as Chairman of the
Board of Directors of The Industrial Development Board of the City of Xxxxxxxxxx
is signed to the foregoing First Supplemental Lease Agreement and who is known
to me and known to be such officer, acknowledged before me on this day that,
being informed of the contents of said instrument, he, as such officer and with
full authority, executed the same voluntarily for and as the act of said Board.
Given under my hand and seal of office this 25th day of February, 1997.
/s/ Xxx X. Xxxxxxxxxx, Xx.
---------------------------------------
NOTARY PUBLIC, State at Large
( S E A L ) My Commission Expires: October 8, 1999
ACKNOWLEDGMENT OF COMPANY
-------------------------
STATE OF FLORIDA )
BROWARD COUNTY )
I, the undersigned Notary Public in and for said County in said State,
hereby certify that Xxxxx X. Xxxxxx, whose signature as President of KINPAK
INC., an Alabama corporation, is signed to the foregoing First Supplemental
Lease Agreement and who is known to me and known to be such officer,
acknowledged before me on this day that, being informed of the contents of said
instrument, he, as such officer and with full authority, executed the same
voluntarily for and as the act of said corporation.
Given under my hand and seal of office this 25th day of February, 1997.
/s/ Xxxxxxxxx Xxxxx
---------------------------------------
NOTARY PUBLIC, State at Large
( S E A L ) My Commission Expires:July 12, 1997
-12-
CONSENT OF TRUSTEE
------------------
REGIONS BANK, in its capacity as the Trustee (as defined in the
Original Lease) and by its undersigned duly authorized officer, hereby
acknowledges receipt of the foregoing instrument and consents to all its terms
and provisions and to the execution, delivery and recordation thereof as an
amendment of the Original Lease, all pursuant to Article VII of the Original
Indenture.
IN WITNESS WHEREOF, REGIONS BANK has caused this consent to be executed
in its name and on its behalf as of the date of the acknowledgment made below.
REGIONS BANK
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxxx
Vice President/Corporate Trust Officer
ACKNOWLEDGMENT
--------------
STATE OF ALABAMA )
:
MONTGOMERY COUNTY )
I, the undersigned Notary Public in and for said County in said State,
hereby certify that Xxxxxx X. Xxxxxxxx, whose name as Vice President/Corporate
Trust Officer of Regions Bank, a banking corporation in the State of Alabama, is
signed to the foregoing Consent, and who is known to me, acknowledged before me
on this day that, being informed of the contents of said Consent, he, as such
officer and with full authority, executed the same voluntarily for and as the
act of said corporation.
Given under my hand and seal of office this 25th day of February, 1997.
/s/ Xxxx Xxxxx Xxxxx
-----------------------------------
NOTARY PUBLIC State at Large
(SEAL) My Commission Expires:
-13-
CONSENT OF BANK
---------------
FIRST UNION NATIONAL BANK OF FLORIDA, in its capacity as the Bank (as
defined in the Original Lease) and by its undersigned duly authorized officer,
hereby acknowledges receipt of the foregoing instrument and consents to all its
terms and provisions and to the execution, delivery and recordation thereof as
an amendment of the Original Lease, all pursuant to Article VII of the Original
Indenture.
IN WITNESS WHEREOF, FIRST UNION NATIONAL BANK OF FLORIDA has caused
this Consent to be executed in its name and on its behalf as of the date of the
acknowledgment made below.
FIRST UNION NATIONAL BANK OF FLORIDA
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Xxxxxx Xxxxxxxxx
Vice President
ACKNOWLEDGMENT
--------------
STATE OF FLORIDA )
:
BROWARD COUNTY )
I, the undersigned Notary Public in and for said County in said State,
hereby certify that Xxxxxx Xxxxxxxxx, whose name as Vice President of First
Union National Bank of Florida, a national banking association, is signed to the
foregoing Consent, and who is known to me, acknowledged before me on this day
that, being informed of the contents of said Consent, she, as such officer and
with full authority, executed the same voluntarily for and as the act of said
association.
Given under my hand and seal of office this 26 day of February, 1997.
/s/ Xxxxxxx Xxxx Xxxxxxx
NOTARY PUBLIC State at Large
(SEAL) My Commission Expires: Oct. 20, 1998
THIS INSTRUMENT PREPARED BY:
Xxx X. Xxxxxxxxxx, Esq.
Xxx X. Xxxxxxxxxx, P.C.
P. O. Xxx 0000
Xxxxxxxxxx, Xxxxxxx 00000-0000
(000) 000-0000
-14-
