EXHIBIT 4.4
________________________________________________________________________________
________________________________________________________________________________
FIRST SUPPLEMENTAL TRUST INDENTURE
between
THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF MONTGOMERY
and
REGIONS BANK,
as Trustee and Registrar
_____________________________________________
Relating to
The Industrial Development Board of the
City
of Montgomery
$4,000,000 Industrial Refunding Revenue Bonds
(KINPAK INC. Project) Series 1997
and
$990,000 Industrial Refunding Revenue Bonds
(KINPAK INC. Project) Series 1996B
_____________________________________________
Dated
as of
March 1, 1997
________________________________________________________________________________
________________________________________________________________________________
Roy S. Goldfinger, P.C.
Montgomery, Alabama
Bond Counsel
THIS INSTRUMENT AMENDS AND SUPPLEMENTS THAT
CERTAIN TRUST INDENTURE, DATED AS OF
DECEMBER 1, 1996 AND RECORDED IN THE OFFICE
OF THE JUDGE OF PROBATE OF
MONTGOMERY COUNTY, ALABAMA, IN RLPY BOOK
1718, PAGE 679, BETWEEN THE INDUSTRIAL
DEVELOPMENT BOARD OF THE CITY OF MONTGOMERY
AS LESSOR AND REGIONS BANK AS
TRUSTEE.
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FIRST SUPPLEMENTAL TRUST INDENTURE
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...........................................3
Section 4. Issuance of the Series 1997 Bonds;
Terms Thereof................4
Section 5. Provisions as to
Funds..........................................4
Section 6. Investment of Fund
Moneys.......................................6
Section 7. Effect on Original
Indenture....................................7
Section 8. Execution
Counterparts..........................................7
SIGNATURES..................................................................8
ACKNOWLEDGMENTS.............................................................9
CONSENT OF
COMPANY.........................................................10
CONSENT OF
BANK............................................................11
Exhibit A Form of Series 1997 Bond
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FIRST SUPPLEMENTAL TRUST INDENTURE
THIS FIRST SUPPLEMENTAL TRUST INDENTURE made and entered into as
of
March 1, 1997 (this "First Supplemental
Indenture"), by and between THE
INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF
MONTGOMERY, its successors and
assigns (the "Issuer"), a public
corporation organized and existing under the
laws of the State of Alabama (the "State"),
and REGIONS BANK, a state banking
corporation authorized to accept and
execute trusts of the character herein set
forth, with its principal corporate trust
office for purposes of discharging the
trusts hereunder being in the City of
Montgomery, Alabama, its successors and
assigns (the "Trustee"), under the
circumstances set forth in the following
recitals (the capitalized terms not defined
in this paragraph or the recitals
being used therein as defined in Article I
hereof or, if not otherwise defined
herein, in the Original Indenture
hereinafter mentioned, which definitions are
hereby incorporated by reference
herein):
W I T N E S S E T H:
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 to the First Supplemental
Lease.
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 Indenture, to be accomplished
hereby, and of the Original Lease, to be
accomplished by the First Supplemental
Lease to be entered into simultaneously
herewith.
F. The execution and delivery of this First Supplemental Indenture
and
the issuance of the Series 1997 Bonds under
the Act have been in all respects
duly and validly authorized by resolutions
duly adopted and approved by the
Issuer.
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G. The Series 1997 Bonds to be issued under the Indenture and
the
authentication certificate thereon are to
be substantially in the forms thereof
attached hereto as Exhibit A, with
appropriate omissions, insertions and
variations permitted or authorized as
hereinafter provided.
H. All things necessary to make the Series 1997 Bonds, when
authenticated by the Trustee and issued as
in this First Supplemental Indenture
provided, the valid, binding and legal
obligations of the Issuer according to
the import thereof, and to constitute the
Indenture a valid pledge of the
Revenues to the payment of the Debt Service
on and Purchase Price of the Bonds,
have been done and performed, and the
creation, execution and delivery of this
First Supplemental Indenture, and the
execution and issuance of the Series 1997
Bonds, subject to the terms hereof, have in
all respects been duly authorized.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements
hereinafter contained, the parties to this
First Supplemental Indenture 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
Indenture or the Original Indenture, or by
reference to the Lease Agreement 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 this 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 this 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.
"Construction Fund" means the Construction Fund created in this
First
Supplemental Indenture.
"First Supplemental Lease" means the First Supplemental Lease
Agreement, dated as of the first day of the
month in which the Issue Date
occurs, between the Issuer and the Company,
amending and supplementing the
Original Lease in connection with the
issuance of the Series 1997 Bonds.
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"Indenture" means the Original Indenture, as amended and
supplemented
by this 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.
"Lease Agreement" means the Original Lease, as amended and
supplemented
by the 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 this First Supplemental
Indenture.
"Refunding Fund" means the Refunding Fund created in this First
Supplemental Indenture.
Section 2. Interpretation. The provisions of Section 102 of the
Original Indenture 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 Indenture; and
the term "hereafter" means after, and the
term "heretofore" means before, the
effective date of this First Supplemental
Indenture.
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.
Section 3. Captions and Headings. The captions and headings in
this
First Supplemental Indenture are solely for
convenience of reference and in no
way define, limit or describe the scope or
intent of any Articles, Sections,
subsections, par
