GUARANTY (Continuing Debt - Unlimited)
(Continuing
Debt - Unlimited)
DATE AND
PARTIES. The date of this Guaranty is April 23,
2009. The parties and their addresses are:
LENDER:
EAGLEBANK
0000
Xxxxxxxx Xxxxxx
Bethesda,
Maryland 20814
Telephone: (000)
000-0000
BORROWER:
INNOLOG
HOLDINGS CORPORATION
a Nevada
Corporation
0000
Xxxxxxxxxx Xxxxx, Xxx 000
McLean,
Virginia 22102
GUARANTOR:
XXXXXXX XXXX
36
Northumberland
Nashville,
Tennessee 37215
1. DEFINITIONS. As
used in this Guaranty, the terms have the following meanings:
A. Pronouns. The
pronouns "I", "me" and "my" refer to all persons or entities signing this
Guaranty, individually and together. "You" and "your" refer to the
Lender.
B. Note. "Note"
refers to the document that evidences the Borrower's indebtedness, and any
extensions, renewals, modifications and substitutions of the Note.
C.
Property. "Property" means any property, real, personal or
intangible, that secures performance of the obligations of the Note, Debt, or
this Guaranty.
2. SPECIFIC AND FUTURE DEBT
GUARANTY. For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and to induce you, at your option,
to make loans or engage in any other transactions with the Borrower from time to
time, I absolutely and unconditionally agree to all terms of and guaranty to you
the payment and performance of each and every Debt, of every type, purpose and
description that the Borrower either individually, among all or a portion of
themselves, or with others, may now or at any time in the future owe you,
including, but not limited to the following described Debt(s) including without
limitation, all principal, accrued interest, attorneys' fees and collection
costs, when allowed by law, that may become due from the Borrower to you in
collecting and enforcing the Debt and all other agreements with respect to the
Borrower.
Promissory
Note 7200014625 dated April 23, 2009 in the amount of $500,000.00 from Innolog
Holdings Corporation.
In
addition, Debt refers to debts, liabilities, and obligations of the Borrower
(including, but not limited to, amounts agreed to be paid under the terms of any
notes or agreements securing the payment of any debt, loan, liability or
obligation, overdrafts, letters of credit, guaranties, advances for taxes,
insurance, repairs and storage, and all extensions, renewals, refinancings and
modifications of these debts) whether now existing or created or incurred in the
future, due or to become due, or absolute or contingent, including obligations
and duties arising from the terms of all documents prepared or submitted for the
transaction such as applications, security agreements, disclosures, and the
Note.
You may,
without notice, apply this Guaranty to such Debt of the Borrower as you may
select from time to time.
3. EXTENSIONS. I
consent to all renewals, extensions, modifications and substitutions of the Debt
which may be made by you upon such terms and conditions as you may see fit from
time to time without further notice to me and without limitation as to the
number of renewals, extensions, modifications or substitutions.
A. Future
Advances. I waive notice of and consent to any and all future
advances made to the Borrower by you.
4. UNCONDITIONAL
LIABILITY. I am unconditionally liable under this Guaranty,
regardless of whether or not you pursue any of your remedies against the
Borrower, against any other maker, surety, guarantor or endorser of the Debt or
against any Property. You may sue me alone, or anyone else who is
obligated on this Guaranty, or any number of us together, to collect the
Debt. My liability is not conditioned on the signing of this Guaranty
by any other person and further is not subject to any condition not expressly
set forth in this Guaranty or any instrument executed in connection with the
Debt. My obligation to pay according to the terms of this Guaranty
shall not be affected by the illegality, invalidity or unenforceability of any
notes or agreements evidencing the Debt, the violation of any applicable usury
laws, forgery, or any other circumstances which make the indebtedness
unenforceable against the Borrower. I will remain obligated to pay on
this Guaranty even if any other person who is obligated to pay the Debt,
including the Borrower, has such obligation discharged in bankruptcy,
foreclosure, or otherwise discharged by law.
5. BANKRUPTCY. If a
bankruptcy petition should at any time be filed by or against the Borrower, the
maturity of the Debt, so far as my liability is concerned, shall be accelerated
and the Debt shall be immediately payable by me. I acknowledge and
agree that this Guaranty, and the Debt secured hereby, will remain in full force
and effect at all times, notwithstanding any action or undertakings by, or
against, you or against any Property, in connection with any obligation in any
proceeding in the United States Bankruptcy Courts. Such action or
undertaking includes, without limitation, valuation of Property, election of
remedies or imposition of secured or unsecured claim status upon claims by you,
pursuant to the United States Bankruptcy Code, as amended. In the
event that any payment of principal or interest received and paid by any other
guarantor, borrower, surety, endorser or co-maker is deemed, by final order of a
court of competent jurisdiction, to have been a voidable preference under the
bankruptcy or insolvency laws of the United States or otherwise, then my
obligation will remain as an obligation to you and will not be considered as
having been extinguished.
6. REVOCATION. I agree
that this is an absolute and unconditional Guaranty. I agree that
this Guaranty will remain binding on me, whether or not there are any Debts
outstanding, until you have actually received written notice of my revocation or
written notice of my death or incompetence. Notice of revocation or
notice of my death or incompetence will not affect my obligations under this
Guaranty with respect to any Debts incurred by or for which you have made a
commitment to Borrower before you actually receive such notice, and all
renewals, extensions, refinancings, and modifications of such
Debts. I agree that if any other person signing this Guaranty
provides a notice of revocation to you, I will still be obligated under this
Guaranty until I provide such a notice of revocation to you. If any
other person signing this Guaranty dies or is declared incompetent, such fact
will not affect my obligations under this Guaranty.
7. PROPERTY. I agree
that any Property may be assigned, exchanged, released in whole or in part or
substituted without notice to me and without defeating, discharging or
diminishing my liability. My obligation is absolute and your failure
to perfect any security interest or any act or omission by you which impairs the
Property will not relieve me or my liability under this Guaranty. You
are under no duty to preserve or protect any Property until you are in actual or
constructive possession. For purposes of this paragraph, you will
only be in "actual" possession when you have physical, immediate and exclusive
control over the Property and have accepted such control in
writing. Further, you will only be deemed to be in "constructive"
possession when you have both the power and intent to exercise control over the
Property.
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Xxxx Xxxx
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Maryland
Guaranty
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Initials
______
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MD/4XXXatang00063000005993015042209Y
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-1996 Bankers
Systems, Inc., St. Cloud, MN C
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Page
1
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8. DEFAULT. I will be
in default if any of the following occur:
A. Payments. I fail
to make a payment in full when due.
B. Insolvency or
Bankruptcy. The death, dissolution or insolvency of,
appointment of a receiver by or on behalf of, application of any debtor relief
law, the assignment for the benefit of creditors by or on behalf of, the
voluntary or involuntary termination of existence by, or the commencement of any
proceeding under any present or future federal or state insolvency, bankruptcy,
reorganization, composition or debtor relief law by or against me, Borrower, or
any co-signer, endorser, surety or guarantor of this Guaranty or any
Debt.
C. Death or
Incompetency. I die or am declared legally
incompetent.
D. Failure to
Perform. I fail to perform any condition or to keep any
promise or covenant of this Guaranty.
E. Other
Documents. A default occurs under the terms of any other
document relating to the Debt.
F. Other
Agreements. I am in default on any other debt or agreement I
have with you.
G.
Misrepresentation. I make any verbal or written statement or
provide any financial information that is untrue, inaccurate, or conceals a
material fact at the time it is made or provided.
H. Judgment. I fail
to satisfy or appeal any judgment against me.
I. Forfeiture. The
Property is used in a manner or for a purpose that threatens confiscation by a
legal authority.
J. Name Change. I
change my name or assume an additional name without notifying you before making
such a change.
K. Property
Transfer. I transfer all or a substantial part of my money or
property.
L. Property
Value. You determine in good faith that the value of the
Property has declined or is impaired.
M. Insecurity. You
determine in good faith that a material adverse change has occurred in my
financial condition from the conditions set forth in my most recent financial
statement before the date of this Guaranty or that the prospect for payment or
performance of the Debt is impaired for any reason.
9. WAIVERS AND
CONSENT. To the extent not prohibited by law, I waive protest,
presentment for payment, demand, notice of acceleration, notice of intent to
accelerate and notice of dishonor, and any and all notices related to this
Guaranty or to any of the Debts, including, but not limited to notice of your
acceptance of this Guaranty, the present existence or future incurring of any
debt or any terms or amounts of the Debts or any change in the Debts, or notice
of obtaining or releasing of any guaranty, surety agreement, pledge assignment
or other security for any Debt.
A. Additional
Waivers. In addition, to the extent permitted by law, I
consent to certain actions you may take, and generally waive defenses that may
be available based on these actions or based on the status of a party to the
Debt or this Guaranty.
(1) You may renew or extend
payments on the Debt, regardless of the number of such renewals or
extensions.
(2) You may release any
Borrower, endorser, guarantor, surety, accommodation maker or any other
co-signer.
(3) You may release,
substitute or impair any Property.
(4) You, or any institution
participating in the Debt, may invoke your right of set-off.
(5) You may enter into any
sales, repurchases or participations of the Debt to any person in any amounts
and I waive notice of such sales, repurchases or participations.
(6) I agree that the Borrower
is authorized to modify the terms of the Debt or any instrument securing,
guarantying or relating to the Debt.
(7) You may undertake a
valuation of any Property in connection with any proceedings under the United
States Bankruptcy Code concerning the Borrower or me, regardless of any such
valuation, or actual amounts received by you arising from the sale of such
Property.
(8) I agree to consent to any
waiver granted the Borrower, and agree that any delay or lack of diligence in
the enforcement of the Debt, or any failure to file a claim or otherwise protect
any of the Debt, in no way affects or impairs my liability.
(9) I agree to waive reliance
on any anti-deficiency statutes, through subrogation or otherwise, and such
statutes in no way affect or impair my liability. In addition, until
the obligations of the Borrower to Lender have been paid in full, I waive any
right of subrogation, contribution, reimbursement, indemnification, exoneration,
and any other right I may have to enforce any remedy which you now have or in
the future may have against the Borrower or another guarantor or as to any
Property.
Any
Guarantor who is an "insider," as contemplated by the United States Bankruptcy
Code, 11 U.S.C. 101, as amended, makes these waivers permanently. (An
insider includes, among others, a director, officer, partner, or other person in
control of the Borrower, a person or an entity that is a co-partner with the
Borrower, an entity in which the Borrower is a general partner, director,
officer or other person in control or a close relative of any of these other
persons.) Any Guarantor who is not an insider makes these waivers
until all Debt is fully repaid.
B. No Waiver By
Lender. Your course of dealing, or your forbearance from, or
delay in, the exercise of any of your rights, remedies, privileges or right to
insist upon my strict performance of any provisions contained in the Debt
instruments, shall not be construed as a waiver by you, unless any such waiver
is in writing and is signed by you.
X. Xxxxxx of
Claims. I waive all claims for loss or damage caused by your
acts or omissions where you acted reasonably and in good faith.
10. EFFECT OF YOUR SECURITY
AGREEMENT. If any security interest or lien is granted over
any real or personal property for any of the Debts ("Collateral"), it is for
your benefit exclusively, and not for my benefit, neither directly nor
indirectly nor by subrogation or otherwise.
The
Borrower has all risk of loss of the Collateral. You have no
liability or duty, either before or after Default, on account of loss of or
damage to, to collect or enforce any of Borrower's rights against the
Collateral, to collect any income accruing on the Collateral, or to preserve
rights against account debtors or other parties with prior interests in the
Collateral. If you receive any notices requiring action with respect
to Collateral in your possession, you will take reasonable steps to forward
these notices to the Borrower. The Borrower is responsible for
responding to notices concerning the Collateral, voting the Collateral, and
exercising rights and options, calls and conversions of the
Collateral. You only have to take such action as is reasonably
requested in writing by the Borrower, and you do not have to take any action
that, in your sole judgment, would affect adversely the value of the Collateral
as security for the Debts.
Your
collection and enforcement of Collateral against account debtors and other
persons obligated thereon shall be deemed to be commercially reasonable if you
exercise the care and follow the procedures that you generally apply to the
collection of obligations owed directly to you. You may apply all
Collateral and proceeds of Collateral coming into your possession and all
payments made by any person to any of the Debts you want. Until you
actually receive cash proceeds, you may defer the application of non-cash
proceeds of Collateral, including, but not limited to, non-cash proceeds
collected from account debtors and other persons obligated on Collateral
securing the Debts.
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Xxxx Xxxx
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Maryland
Guaranty
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Initials
______
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MD/4XXXatang00063000005993015042209Y
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-1996 Bankers
Systems, Inc., St. Cloud, MN C
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Page
2
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I agree
that commercial reasonableness and good faith require you to give me no more
than 5 days prior written notice of the time and place of any public disposition
of Collateral or of the time after which any private disposition or other
intended disposition is to be made. I agree that it is commercially
reasonable for you to disclaim all warranties that arise with respect to the
disposition of the Collateral.
11. REMEDIES. After the
Borrower or I default, you may at your option do any one or more of the
following.
A.
Acceleration. You may declare an amount equal to any or all of
the outstanding balance of the Debts to be immediately due and payable by me,
whether or not you have accelerated and called due any or all sums due from the
Borrower, and I shall immediately pay the same to you.
B. Sources. You may
use any and all remedies you have under state or federal law or in any documents
relating to the Debt.
C. Insurance
Benefits. You may make a claim for any and all insurance
benefits or refunds that may be available on default.
D. Payments Made on the Borrower's
Behalf. Amounts advanced on the Borrower's behalf will be
immediately due and may be added to the balance owing under the
Debt.
E. Termination. You
may terminate my right to obtain advances and may refuse to make any further
extensions of credit.
F. Attachment. You
may attach or garnish my wages or earnings.
G. Set-Off. You may
use the right of set-off. This means you may set-off any amount due
and payable under the terms of this Guaranty against any right I have to receive
money from you.
My right
to receive money from you includes any deposit or share account balance I have
with you; any money owed to me on an item presented to you or in your possession
for collection or exchange; and any repurchase agreement or other non-deposit
obligation. "Any amount due and payable under the terms of this
Guaranty" means the total amount to which you are entitled to demand payment
under the terms of this Guaranty at the time you set-off.
Subject
to any other written contract, if my right to receive money from you is also
owned by someone who has not agreed to pay the Debt, your right of set-off will
apply to my interest in the obligation and to any other amounts I could withdraw
on my sole request or endorsement.
Your
right of set-off does not apply to an account or other obligation where my
rights arise only in a representative capacity. It also does not
apply to any Individual Retirement Account or other tax-deferred retirement
account.
You will
not be liable for the dishonor of any check when the dishonor occurs because you
set-off against any of my accounts. I agree to hold you harmless from
any such claims arising as a result of your exercise of your right of
set-off.
X. Xxxxxx. Except
as otherwise required by law, by choosing any one or more of these remedies you
do not give up your right to use any other remedy. You do not waive a
default if you choose not to use a remedy. By electing not to use any
remedy, you do not waive your right to later consider the event a default and to
use any remedies if the default continues or occurs again.
12. COLLECTION EXPENSES AND ATTORNEYS'
FEES. On or after Default, to the extent permitted by law, I
agree to pay all expenses of collection, enforcement or protection of your
rights and remedies under this Guaranty or any other document relating to the
Debt. To the extent permitted by law, expenses include, but are not
limited to, reasonable attorneys' fees, court costs and other legal
expenses. All fees and expenses will be secured by the Property I
have granted to you, if any. In addition, to the extent permitted by
the United States Bankruptcy Code, I agree to pay the reasonable attorneys' fees
incurred by you to protect your rights and interests in connection with any
bankruptcy proceedings initiated by or against me.
13. WARRANTIES AND
REPRESENTATIONS. I have the right and authority to enter into
this Guaranty. The execution and delivery of this Guaranty will not
violate any agreement governing me or to which I am a party.
In
addition, I represent and warrant that this Guaranty was entered into at the
request of the Borrower, and that I am satisfied regarding the Borrower's
financial condition and existing indebtedness, authority to borrow and the use
and intended use of all Debt proceeds. I further represent and
warrant that I have not relied on any representations or omissions from you or
any information provided by you respecting the Borrower, the Borrower's
financial condition and existing indebtedness, the Borrower's authority to
borrow or the Borrower's use and intended use of all Debt proceeds.
14. RELIANCE. I
acknowledge that you are relying on this Guaranty in extending credit to the
Borrower, and I have signed this Guaranty to induce you to extend such
credit. I represent and warrant to you that I have a direct and
substantial economic interest in the Borrower and expect to derive substantial
benefits from any loans and financial accommodations resulting in the creation
of indebtedness guarantied hereby. I agree to rely exclusively on the
right to revoke this Guaranty prospectively as to future transactions in the
manner as previously described in this Guaranty if at any time, in my opinion,
the benefits then being received by me in connection with this Guaranty are not
sufficient to warrant the continuance of this Guaranty. You may rely
conclusively on a continuing warranty that I continue to be benefited by this
Guaranty and you will have no duty to inquire into or confirm the receipt of any
such benefits, and this Guaranty will be effective and enforceable by you
without regard to the receipt, nature or value of any such
benefits.
15. APPLICABLE
LAW. This Guaranty is governed by the laws of Maryland, the
United States of America, and to the extent required, by the laws of the
jurisdiction where the Property is located, except to the extent such state laws
are preempted by federal law.
16. AMENDMENT, INTEGRATION AND
SEVERABILITY. This Guaranty may not be amended or modified by
oral agreement. No amendment or modification of this Guaranty is
effective unless made in writing and executed by you and me. This
Guaranty is the complete and final expression of the agreement. If
any provision of this Guaranty is unenforceable, then the unenforceable
provision will be severed and the remaining provisions will still be
enforceable.
17. ASSIGNMENT. If you
assign any of the Debts, you may assign all or any part of this Guaranty without
notice to me or my consent, and this Guaranty will inure to the benefit of your
assignee to the extent of such assignment. You will continue to have
the unimpaired right to enforce this Guaranty as to any of the Debts that are
not assigned. This Guaranty shall inure to the benefit of and be
enforceable by you and your successors and assigns and any other person to whom
you may grant an interest in the Debts and shall be binding upon and enforceable
against me and my personal representatives, successors, heirs and
assigns.
18. INTERPRETATION. Whenever
used, the singular includes the plural and the plural includes the
singular. The section headings are for convenience only and are not
to be used to interpret or define the terms of this Guaranty.
19. NOTICE, FINANCIAL REPORTS AND
ADDITIONAL DOCUMENTS. Unless otherwise required by law, any
notice will be given by delivering it or mailing it by first class mail to the
appropriate party's address listed in the DATE AND PARTIES section, or to any
other address designated in writing. Notice to one Guarantor will be
deemed to be notice to all Guarantors. I will inform you in writing
of any change in my name, address or other application information. I
will provide you any financial statement or information you
request. All financial statements and information I give you will be
correct and complete. I agree to sign, deliver, and file any
additional documents or certifications that you may consider necessary to
perfect, continue, and preserve my obligations under this Guaranty and to
confirm your lien status on any Property. Time is of the
essence.
20. CREDIT
INFORMATION. I agree that from time to time you may obtain
credit information about me from others, including other lenders and credit
reporting agencies, and report to others (such as a credit reporting agency)
your credit experience with me. I agree that you will not be liable
for any claim arising from the use of information provided to you by others or
for providing such information to others.
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Xxxx Xxxx
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Maryland
Guaranty
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Initials
______
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MD/4XXXatang00063000005993015042209Y
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-1996 Bankers
Systems, Inc., St. Cloud, MN C
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Page
3
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21.
WAIVER OF JURY TRIAL. All of the parties to this Guaranty knowingly
and intentionally, irrevocably and unconditionally, waive any and all right to a
trial by jury in any litigation arising out of or concerning this Guaranty or
any other documents relating to the Debt or related obligation. All
of these parties acknowledge that this section has either been brought to the
attention of each party's legal counsel or that each party had the opportunity
to do so.
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CONFESSION OF
JUDGMENT. In the event I default, I authorize any attorney
admitted to practice before any court of record in the United States to
appear on my behalf in any court having jurisdiction in one or more
proceedings, or before any clerk or other court official, and to CONFESS
JUDGMENT AGAINST ME, WITHOUT PRIOR NOTICE OR OPPORTUNITY FOR PRIOR
HEARING, in your favor for the unpaid balance due under this Guaranty,
including interest, court costs, late charges, expenses and attorneys'
fees of 15 percent of the total amount then due under this
Guaranty. I waive the benefit of every law, ordinance, or rule
of court that gives me any right or privilege of exemption, summons and
other process, that lawfully may be waived; all heirs and rights of
appeal, homestead rights, stay of execution or stay of supplementary
proceedings, or other relief from the enforcement or immediate enforcement
of a judgment or related proceedings on a judgment. The
authority and power to appear for and enter judgment against me will not
be exhausted by one or more exercises, or by any imperfect exercise, and
will not be extinguished by any judgment entered; such authority and power
may be exercised one or more times, from time to time, in the same or
different jurisdictions, as often as you deem necessary or
advisable.
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22. SIGNATURES. By
signing under seal, I agree to the terms contained in this
Guaranty. I also acknowledge receipt of a copy of this
Guaranty.
GUARANTOR:
_________________________________
(Seal)
Xxxxxxx Xxxx
Individually
Commonwealth of
Virginia
)
) ss:
COUNTY
OF: )
I hereby
certify that on this ____, day of April, 2009, before me, the subscriber, a
Notary Public of the Commonwealth
of Virginia, in and for the jurisdiction aforesaid, personally
appeared Xxxxxxx
Xxxx, satisfactorily proven to be the person whose name is subscribed to
the within instrument and acknowledged that he/she executed the same for the
purposes therein contained.
IN
WITNESS WHEREOF, I hereunto set my hand and official seal.
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_____________________
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Notary
Public
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Notary
Number__________
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My
Commission Expires:
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Xxxx Xxxx
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Maryland
Guaranty
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Initials
______
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MD/4XXXatang00063000005993015042209Y
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-1996 Bankers
Systems, Inc., St. Cloud, MN C
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Page
4
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