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EXHIBIT 7.2
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GULF CANADA RESOURCES LIMITED
TO
THE BANK OF NEW YORK
Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of November 16, 1998
TO
INDENTURE
Dated as of October 17, 1997
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8 3/8% SENIOR NOTES DUE 2005
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TABLE OF CONTENTS
Page
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PARTIES
RECITALS OF THE COMPANY...........................................................................................1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..............................................1
Section 101 Definitions..................................................................................1
ARTICLE TWO SECURITY FORMS.......................................................................................2
Section 201 Form of Securities of this Series............................................................2
Section 202 Form of Face of Security.....................................................................2
Section 203 Form of Reverse of Security..................................................................3
ARTICLE THREE THE SERIES OF SECURITIES............................................................................6
Section 301 Title and Terms..............................................................................6
ARTICLE FOUR MODIFICATIONS AND ADDITIONS TO THE INDENTURE.........................................................7
Section 401 Modifications to the Registration, Registration of Transfer and Exchange.....................7
Section 402 Additions for Indemnification for Foreign Currency Judgments.................................7
ARTICLE FIVE MISCELLANEOUS........................................................................................8
Section 501 Miscellaneous................................................................................8
(i)
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FIRST SUPPLEMENTAL INDENTURE, dated as of November 16, 1998, between
Gulf Canada Resources Limited, a corporation duly organized and existing under
the laws of Canada (herein called the "Company"), having its principal office at
000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx X0X 0X0, and The Bank of New York,
a New York banking corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has heretofore executed and delivered to the Trustee an
Indenture dated as of October 17, 1997 (the "Indenture"), providing for the
issuance from time to time of the Company's unsecured debentures, notes or other
evidences of indebtedness (herein and therein called the "Securities"), to be
issued in one or more series as in the Indenture provided.
Section 201 of the Indenture permits the form of the Securities of any
series to be established pursuant to an indenture supplemental to the Indenture.
Section 301 of the Indenture permits the terms of the Securities of any
series to be established in an indenture supplemental to the Indenture.
Section 901(7) of the Indenture provides that, without the consent of
any Holders, the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental to the Indenture for the purpose of establishing the
form or terms of Securities of any series as permitted by Sections 201 and 301
of the Indenture.
The Company, pursuant to the foregoing authority, proposes in and by
this First Supplemental Indenture to establish the terms and form of the
Securities of a new series and to amend and supplement the Indenture in certain
respects with respect to the Securities of such series.
All things necessary to make this First Supplemental Indenture a valid
agreement of the Company, and a valid amendment of and supplement to the
Indenture, have been done.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities of the series to be
created hereby, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101 DEFINITIONS.
(a) For all purposes of this First Supplemental
Indenture:
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(1) Capitalized terms used herein without definition
shall have the meanings specified in the Indenture;
(2) All references herein to Articles and Sections,
unless otherwise specified, refer to the corresponding Articles and Sections of
this First Supplemental Indenture and, where so specified, to the Articles and
Sections of the Indenture as supplemented by this First Supplemental Indenture;
and
(3) The terms "hereof", "herein", "hereby", "hereto",
"hereunder" and "herewith" refer to this First Supplemental Indenture.
ARTICLE TWO
SECURITY FORMS
SECTION 201 FORM OF SECURITIES OF THIS SERIES. The Securities of this
series shall be in the form set forth in this Article.
SECTION 202 FORM OF FACE OF SECURITY.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
GULF CANADA RESOURCES LIMITED
No. _________ $ _____
CUSIP NO. _________
Gulf Canada Resources Limited, a corporation duly organized and existing under
the laws of Canada (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _________________, or registered assigns,
the principal sum of ______________ Dollars on November 15, 2005, and to pay
interest thereon from November 16, 1998 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually in
arrears on May 15 and November 15 in each year, commencing May 15, 1999, at the
rate of 8-3/8% per annum, until the principal hereof is paid or made available
for payment. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the May 1 or November 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities)
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is registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Company, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest
on this Security will be made at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan in the City of New York, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register; and provided further, that at the option of the Company
payment may be made by wire transfer of immediately available funds with respect
to principal of and interest and premium on this Security and all other
Securities of this series the Holders of which shall have provided wire transfer
instructions to the Company or the Payment Agent, if any.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed and attested.
Gulf Canada Resources Limited
By
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Attest:
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SECTION 203 FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of October 17, 1997, as supplemented by the
First Supplemental Indenture dated as of November 16, 1998 (as so supplemented,
herein called the "Indenture", which term shall have the meaning assigned to it
in such instrument), each between the Company and The Bank of New York, as
Trustee (herein called the "Trustee", which term includes any
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successor trustee under the Indenture), and reference is hereby made to the
Indenture and all indentures supplemental thereto for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof, limited in
aggregate principal amount to $200,000,000.
The Company may, at any time, redeem as a whole but not in part, the
Outstanding Securities of this series at a redemption price of 100% of the
principal amount thereof plus accrued interest (if any) to the date of
redemption if it has become or would become obligated to pay any Additional
Amounts in respect of the Securities of this series as a result of (i) any
change in or amendment to the laws (or regulations promulgated thereunder) of
Canada (or any political subdivision or taxing authority thereof or therein ) or
(ii) any change in or amendment to any official position regarding the
application or interpretation of such laws or regulations, which change or
amendment is announced or is effective on or after November 16, 1998.
The Securities of this series do not provide for any sinking fund
payments.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.
If an Event of Default with respect to the Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture. Upon payment (i) of the principal so declared due and payable and
(ii) of interest on any overdue principal, premium and interest (in each case to
the extent that the payment of such interest shall be legally enforceable), all
of the Company's obligations in respect of the payment of the principal of and
premium and interest, if any, on the Securities of this series shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority of principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless
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such Holder shall have previously given the Trustee written notice of a
continuing Event of Default with respect to the Securities of this series, the
Holders of not less than 25% in principal amount of the Securities of this
series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered
the Trustee reasonable indemnity, and the Trustee shall not have received from
the Holders of a majority in principal amount of Securities of this series at
the time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months. For disclosure purposes under the Interest Act
(Canada), whenever in the Indenture or the Securities interest at a specified
rate is to be calculated on the basis of a period less than a calendar year, the
yearly rate of interest to which such rate is equivalent is such rate multiplied
by the actual number of days in the relevant calendar year and divided by the
number of days in such period.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and none of the Company, the
Trustee and any such agent shall be affected by notice to the contrary.
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All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York.
ARTICLE THREE
THE SERIES OF SECURITIES
SECTION 301 TITLE AND TERMS. There shall be a series of Securities
designated as the "8 3/8% Senior Notes due 2005" of the Company. Their Stated
Maturity shall be November 15, 2005, and they shall bear interest at the rate of
8 3/8% per annum.
Interest on the Securities of this series will be payable semi annually
on May 15 and November 15 of each year, commencing May 15, 1999 until the
principal thereof is made available for payment. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will be paid
to the Person in whose name the Securities of this series (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the May 1 or November 1 (whether
or not a Business Day), as the case may be, next preceding such Interest Payment
Date.
In the case where any Interest Payment Date or the maturity date of the
Securities of this series does not fall on a Business Day, payment of interest
or principal otherwise payable on such date need not be made on such day, but
may be made on the next succeeding Business Day with the same force and effect
as if made on such Interest Payment Date or the maturity date of the Securities
of this series.
The aggregate principal amount of Securities of this series which may
be authenticated and delivered under this First Supplemental Indenture is
limited to $200,000,000 except for Securities authenticated and delivered upon
registration or transfer of, or in exchange for, or in lieu of, other Securities
of this series pursuant to Section 304, 305 and 306 of the Indenture and except
for any Securities of this series which, pursuant to Section 303 of the
Indenture, are deemed never to have been authenticated and delivered under the
Indenture.
The Securities of this series will be represented by one or more Global
Securities representing the entire $200,000,000 aggregate principal amount of
the Securities of this series, and the Depositary with respect to such Global
Security or Global Securities will be The Depository Trust Company.
The Place of Payment for the principal of (and premium, if any) and
interest on the Securities of this series shall be the office or agency of the
Company in the City of New York, State of New York, maintained for such purpose,
which shall be the Corporate Trust Office of the Trustee and at any other office
or agency maintained by the Company for such purpose; provided, however, that at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register; and provided further, that at the option of the Company
payment may be made by wire transfer of immediately available funds with
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respect to principal of and interest and premium on the Securities of this
series the Holders of which shall have provided wire transfer instructions to
the Company or the Payment Agent, if any.
The Securities of this series are not redeemable prior to maturity
unless the Company is obligated to pay Additional Amounts in which case the
provisions of Article Eleven of the Indenture shall be applicable to the
Securities of this series.
The Securities of this series are not subject to a sinking fund and the
provisions of Section 501(3) and Article Twelve of the Indenture shall not be
applicable to the Securities of this series.
The Securities of this series are subject to the provisions of Article
Eight, Article Ten and Article Thirteen of the Indenture.
ARTICLE FOUR
MODIFICATIONS AND ADDITIONS TO THE INDENTURE
SECTION 401 MODIFICATIONS TO THE REGISTRATION, REGISTRATION OF TRANSFER
AND EXCHANGE.
With respect to the Securities of this series, Clause (2) of Section
305 of the Indenture shall be deleted in its entirety and the following shall be
substituted therefor:
"(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary
for such Global Security or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Security or (ii) has ceased
to be a clearing agency registered under the Exchange Act, (B) there
shall have occurred and be continuing an Event of Default with respect
to such Global Security, or (C) the Company executes and delivers to
the Trustee a notice that such Global Security shall be so
transferable, registrable, and exchangeable, and such transfers shall
be registrable."
SECTION 402 ADDITIONS FOR INDEMNIFICATION FOR FOREIGN CURRENCY
JUDGMENTS.
With respect to the Securities of this series, a new Section 1013 of
the Indenture shall be added which shall provide as follows:
"SECTION 1013. INDEMNIFICATION FOR FOREIGN CURRENCY JUDGMENTS
The obligations of the Company to any Holder or the Trustee
shall, notwithstanding any judgment in a currency (the "Judgment
Currency") other than United States dollars (the "Agreement Currency"),
be discharged only to the extent that on the day following receipt by
such Holder or the Trustee, as the case may be, of any amount in the
Judgment Currency, such
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Holder or the Trustee may in accordance with normal banking procedures
purchase the Agreement Currency with the Judgment Currency. If the
amount of the Agreement Currency so purchased is less than the amount
originally to be paid to such Holder or the Trustee, as the case may
be, in the Agreement Currency, the Company agrees, as a separate
obligation and notwithstanding such judgment, to pay to such Holder or
the Trustee, as the case may be, the difference, and if the amount of
the Agreement Currency so purchased exceeds the amount originally to
be paid to such Holder or the Trustee, as the case may be, such Holder
or the Trustee, as the case may be, shall pay to or for the account of
the Company such excess, provided that such Holder or the Trustee, as
the case may be, shall not have any obligation to pay any such excess
as long as a Default has occurred and is continuing, in which case
such excess may be applied by such Holder or the Trustee, as the case
may be, to such obligations."
ARTICLE FIVE
MISCELLANEOUS
SECTION 501 MISCELLANEOUS.
(a) The Trustee accepts the trusts created by the Indenture,
as supplemented by this First Supplemental Indenture, and agrees to perform the
same upon the terms and conditions of the Indenture, as supplemented by this
First Supplemental Indenture.
(b) The recitals contained herein shall be taken as statements
of the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
First Supplemental Indenture.
(c) All capitalized terms used and not defined herein shall
have the respective meanings assigned to them in the Indenture.
(d) Each of the Company and the Trustee makes and reaffirms as
of the date of execution of this First Supplemental Indenture all of its
respective representations, covenants and agreements set forth in the Indenture.
(e) All covenants and agreements in this First Supplemental
Indenture by the Company or the Trustee shall bind its respective successors and
assigns, whether so expressed or not.
(f) In case any provisions in this First Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
(g) Nothing in this First Supplemental Indenture, express or
implied, shall give to any Person, other than the parties hereto and their
successors under the Indenture and the Holders of the series of Securities
created hereby, any benefit or any legal or equitable right, remedy or claim
under the Indenture.
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(h) If any provision hereof limits, qualifies or conflicts
with a provision of the Trust Indenture Act of 1939, as may be amended from time
to time, that is required under such Act to be a part of and govern this First
Supplemental Indenture, the latter provision shall control. If any provision
hereof modifies or excludes any provision of such Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this First
Supplemental Indenture as so modified or excluded, as the case may be.
(i) This First Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
(j) All amendments to the Indenture made hereby shall have
effect only with respect to the series of Securities created hereby.
(k) All provisions of this First Supplemental Indenture shall
be deemed to be incorporated in, and made a part of, the Indenture; and the
Indenture, as supplemented by this First Supplemental Indenture, shall be read,
taken and construed as one and the same instrument.
(l) This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed and attested, and The Bank of New York has caused its corporate
seal to be hereunto affixed, all as of the day and year first above written.
GULF CANADA RESOURCES LIMITED
By /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
Attest:
/s/ Xxxxxx Xxxxxxxxx
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Assistant Secretary
THE BANK OF NEW YORK, as Trustee
By /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Assistant Vice President
[Seal]
Attest:
/s/ Xxxx Xxxx Xxxxxxx
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STATE OF COLORADO )
ss.: )
COUNTY OF DENVER )
On the 11th day of November, 1998, before me personally came Xxxxx X.
Xxxxx, to me known, who, being by me duly sworn, did depose and say that he is
Executive Vice President of Gulf Canada Resources Limited, one of the
corporations described in and which executed the foregoing instrument; and that
he signed his name thereto by authority of the Board of Directors of said
corporation.
/s/ Xxxxxxx Xxxxxxxxx
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XXXXX XX XXX XXXX )
ss.: )
COUNTY OF NEW YORK )
On the 12th day of November, 1998, before me personally came Xxxxxx X.
Xxxxxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is an Assistant Vice President of The Bank of New York one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/ Xxxxxxx X. Xxxxxxx
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