EXHIBIT 4.4
________________________________________________________________________________
________________________________________________________________________________
FIRST SUPPLEMENTAL TRUST INDENTURE
between
THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF XXXXXXXXXX
and
REGIONS BANK,
as Trustee and Registrar
_____________________________________________
Relating to
The Industrial Development Board of the
City of Xxxxxxxxxx
$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
________________________________________________________________________________
________________________________________________________________________________
Xxx X. Xxxxxxxxxx, 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
XXXXXXXXXX COUNTY, ALABAMA, IN RLPY BOOK 1718, PAGE 679, BETWEEN THE INDUSTRIAL
DEVELOPMENT BOARD OF THE CITY OF XXXXXXXXXX AS LESSOR AND REGIONS BANK AS
TRUSTEE.
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 XXXXXXXXXX, 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.
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, paragraphs, subparagraphs or clauses hereof.
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Section 4. Issuance of the Series 1997 Bonds; Terms Thereof.
(a) It is determined to be necessary to, and the Issuer shall,
issue, sell and deliver the Series 1997 Bonds for the purpose of
refunding the Series 1996A Bonds, which were in turn issued for the
purpose of assisting in financing the costs of the Project. The Series
1997 Bonds shall be designated "Industrial Refunding Revenue Bonds
(KINPAK INC. Project) Series 1997"; shall mature, unless earlier
redeemed, on the first Business Day of March, 2012; shall be issuable
only in fully registered form, substantially in the form attached as
Exhibit A to this First Supplemental Indenture; shall be numbered
consecutively upwards beginning with R-1; shall be dated the Issue
Date; shall be redeemable in accordance with the redemption provisions
contained in the Form of Bond attached as Exhibit A hereto and
incorporated by reference herein; shall bear interest from the most
recent date to which interest shall have been paid or duly provided for
or, if no interest shall have been paid or duly provided for, from the
Issue Date; and shall be issuable in Authorized Denominations, except
that the final maturity of the Series 1997 Bonds may be represented by
an instrument of a denomination equal to a multiple of $5,000 that is
less than $100,000. The Series 1997 Bonds may be issued in book-entry
form in accordance with the requirements of applicable law. The Series
1997 Bonds shall be initially issued as DTC-Eligible Obligations, and
therefore the requirements of Section 216 of the Original Indenture
shall be applicable.
(b) As contemplated in Section 202(b) of the Original Indenture,
the Remarketing Agent shall continue to make separate Seven-Day Rate
determinations for the Series 1996B Bonds and the Series 1997 Bonds.
(c) All other provisions of Articles II and III of the Original
Indenture shall continue to be applicable to the Series 1997 Bonds.
(d) Upon the execution and delivery of this First Supplemental
Indenture, and satisfaction of the conditions established by the Issuer
for delivery of the Series 1997 Bonds, the Issuer shall execute the
Series 1997 Bonds and deliver them to the Trustee or other
Authenticating Agent for authentication and delivery to, or on the
order of, the Placement Agent. Prior to the delivery of the Series 1997
Bonds, there shall have been received by the Trustee a duly executed
request and authorization to the Trustee from the Issuer to
authenticate and deliver the Series 1997 Bonds to, or on the order of,
the Placement Agent upon payment to the Trustee of the amount specified
therein. That amount shall be deposited in the Refunding Fund herein
created, all as hereinafter described and as shall be more fully
provided in said request and authorization of the Issuer.
Section 5. Provisions as to Funds.
(a) Sections 401(a) and 406(a) of the Original Indenture
contemplated the creation by the Trustee of a single Bond Fund and a
single Bond Purchase Fund, respectively, for both the Series 1996A
Bonds and the Series 1996B Bonds. In fact, the Trustee created separate
Bond Funds and Bond Purchase Funds for each of the aforesaid Series,
and the provisions of Sections 401(a) and 406(a) are hereby amended to
correct said formal inaccuracy.
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(b) Upon the redemption in whole of the Series 1996A Bonds, which
is intended to occur on the Issue Date, the Trustee shall take the
necessary steps to close the Bond Fund, the Bond Purchase Fund and the
Construction Fund created under the Original Indenture in connection
with the issuance of the Series 1996A Bonds; and any moneys and
investments remaining in any such Fund upon its closure shall be
transferred, respectively, to the Bond Fund, the Bond Purchase Fund or
the Construction Fund created under this First Supplemental Indenture
in connection with the issuance of the Series 1997 Bonds.
(c) There is hereby created and established with the Trustee a
trust fund designated "The Industrial Development Board of the City of
Xxxxxxxxxx -- KINPAK INC. 1997 Bond Fund" (the "Bond Fund"). The
provisions of the Original Indenture relating to the Bond Funds created
thereunder shall continue to be applicable to the Bond Fund created
hereunder.
(d) There is hereby created and established with the Trustee a
trust fund designated "The Industrial Development Board of the City of
Xxxxxxxxxx -- KINPAK INC. 1997 Bond Purchase Fund" (the "Bond Purchase
Fund"). The provisions of the Original Indenture relating to the Bond
Purchase Funds created thereunder shall continue to be applicable to
the Bond Purchase Fund created hereunder.
(e) There is hereby created and established with the Trustee a
trust fund designated "The Industrial Development Board of the City of
Xxxxxxxxxx -- KINPAK INC. 1997 Construction Fund" (the "Construction
Fund"). As provided in Section 5(b) hereinabove, the moneys and
investments remaining in the Construction Fund created under the
Original Indenture, representing proceeds of the sale of the Series
1996A Bonds, shall be deposited in the Construction Fund created
hereunder. All provisions of Section 405 of the Original Indenture
pertaining to the Construction Fund created thereunder and
disbursements therefrom shall continue to be applicable to the
Construction Fund created hereunder, except that the cross-references
to the Series 1996A Bonds in the Company certifications deemed made
pursuant to Section 405(d)(3)(i) and (ii) of the Original Indenture
shall be expanded to encompass the Series 1997 Bonds.
(f) There is hereby created by the Issuer and ordered established
in the custody of the Trustee a fund designated "The Industrial
Development Board of the City of Xxxxxxxxxx -- KINPAK INC. 1997 Rebate
Fund" (the "Rebate Fund"). Any provision of the Indenture to the
contrary notwithstanding, amounts credited to the Rebate Fund shall be
free and clear of any lien under the Indenture. The provisions of the
Original Indenture relating to the Rebate Fund created thereunder shall
remain in full force and effect with respect to the Series 1996B Bonds
and shall furthermore apply to the Rebate Fund created hereunder
(provided that references in Section 407 of the Original Indenture to
the Series 1996B Bonds shall, in the application of said Section to the
Series 1997 Bonds, be deemed amended to refer to the Series 1997
Bonds).
(g) There is hereby created by the Issuer and ordered established
in the custody of the Trustee a fund designated "The Industrial
Development Board of the City of Xxxxxxxxxx -- KINPAK INC. 1997
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Refunding Fund" (the "Refunding Fund"). All the proceeds of the sale of
the Series 1997 Bonds shall be deposited in the Refunding Fund on the
Issue Date. The Trustee shall, on the Issue Date, and without need for
further direction from the Issuer and the Company, apply the moneys on
deposit in the Refunding Fund to the redemption, on the redemption date
designated by the Trustee, of all outstanding Series 1996A Bonds,
provided that accrued interest thereon to such redemption date shall be
paid from proceeds of a drawing under the Initial Letter of Credit.
Section 6. Investment of Fund Moneys. Moneys in 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 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 Refunding Fund and
the Construction Fund shall be invested and reinvested by the Trustee in
Eligible Investments at the direction of the Company, consistent, however, with
the covenants of the Company contained in Section 11 of the First Supplemental
Lease. Investments of moneys in the Bond Fund shall mature or be redeemable at
the option of the Trustee at the times and in the amounts necessary to provide
moneys to pay Debt Service on Series 1997 Bonds as the same shall become due at
stated maturity, by redemption or otherwise.
Subject to any directions from the Company with respect thereto, from
time to time, the Trustee may sell those investments and reinvest the proceeds
therefrom in Eligible Investments maturing or redeemable as aforesaid. Any of
those investments may be purchased from or sold to the Trustee, the Registrar,
an Authenticating Agent or a Paying Agent, or any bank, trust company or savings
and loan association affiliated with any of the foregoing. The Trustee shall
sell or redeem investments credited to the Bond Fund to produce sufficient
moneys applicable hereunder to and at the times required for the purpose of
paying Debt Service on Series 1997 Bonds when due as aforesaid, and shall do so
without necessity for any order on behalf of the Issuer and without restriction
by reason of any order. An investment made from moneys credited to the Bond
Fund, the Bond Purchase Fund, the Construction Fund or the Refunding Fund shall
constitute part of that respective Fund, and each respective Fund shall be
credited with all proceeds of sale and income from investment of moneys credited
thereto. For purposes of the Indenture, all investments shall be valued at face
amount or market value, whichever is less.
In addition to the foregoing requirements, the Issuer 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. As used herein, the terms "gross proceeds",
"nonpurpose investments" and "yield" have the meanings assigned to them for
purposes of Section 148 of the Code.
Furthermore, except to the extent set forth in an opinion of Bond
Counsel, investments or deposits of proceeds of Series 1997 Bonds in
certificates of deposit or pursuant to investment contracts shall not be made
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without compliance, at or prior to such investment or deposit, with the
requirements of Treasury Regulations Section 1.148-5(d)(6)(ii) and (iii),
respectively, or with any successor provisions thereto.
Section 7. Effect on Original Indenture. Except as hereby amended and
supplemented, all other provisions of the Original Indenture are hereby ratified
and reaffirmed.
Section 8. Execution Counterparts. This First Supplemental Indenture
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.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Issuer and the Trustee have caused this First
Supplemental Indenture 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
(SEAL)
By: /s/ R. E. Xxxxxxxx, Xx.
----------------------------------
Chairman of the Board of Directors
ATTEST:
/s/ [illegible]
-----------------------
[Assistant] Secretary
REGIONS BANK, as Trustee and Registrar
(SEAL)
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Vice President/Corporate Trust Officer
ATTEST:
/s/ [illegible]
-----------------------
Corporate Trust Officer
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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, Xx., whose signature as the Chairman of the
Board of Directors of The Industrial Development Board of the City of Xxxxxxxxxx
is signed to the foregoing First Supplemental Indenture 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 _______ day of ________,
1997.
__________________________________
NOTARY PUBLIC, State at Large
My Commission Expires:____________
(SEAL)
ACKNOWLEDGMENT OF TRUSTEE
-------------------------
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 signature as Vice
President/Corporate Trust Officer of Regions Bank is signed to the foregoing
First Supplemental Indenture, 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 Bank.
Given under my hand and seal of office this _____ day of ________,
1997.
__________________________________
NOTARY PUBLIC, State at Large
My Commission Expires:____________
(SEAL)
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CONSENT OF COMPANY
------------------
KINPAK INC., in its capacity as the Company (as defined in the Original
Indenture) 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 a supplemental
indenture, all pursuant to Article VII of the Original Indenture.
IN WITNESS WHEREOF, KINPAK INC. has caused this consent to be executed
in its name and on its behalf as of the date of the acknowledgment made below.
KINPAK INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Xxxxx X. Xxxxxx, President
ACKNOWLEDGMENT
--------------
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 name as President of KINPAK INC., an
Alabama corporation, 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 day of , 1997.
NOTARY PUBLIC State at Large
(SEAL) My Commission Expires:
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CONSENT OF BANK
---------------
FIRST UNION NATIONAL BANK OF FLORIDA, in its capacity as the Bank (as
defined in the Original Indenture) 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 a supplemental indenture, 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 day of , 1997.
NOTARY PUBLIC State at Large
(SEAL) My Commission Expires:
THIS INSTRUMENT PREPARED BY:
----------------------------
Xxx X. Xxxxxxxxxx, Esq.
Xxx X. Xxxxxxxxxx, P.C.
P.O. Box 2007
Montgomery, Alabama 36102-2007
(000) 000-0000
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