ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made and entered into as of
December 13, 2005 by and among MEDICAL STAFFING SOLUTIONS, INC., a corporation
organized and existing under the laws of the State of Nevada (the "Company"),
CORNELL CAPITAL PARTNERS, LP (referred to as "Cornell" and/or the "Investor"),
and XXXXX XXXXXXXX, ESQ., as Escrow Agent hereunder (the "Escrow Agent").
Capitalized terms appearing herein but not defined herein shall have the
meanings ascribed to such terms in the Investment Agreement (defined below).
BACKGROUND
WHEREAS, the Company and the Investor have entered into a Investment
Agreement (the "Investment Agreement"), dated as of the date hereof, pursuant to
which the Company proposes to sell the Investor and the Investor shall purchase
Series A Preferred Shares (the "Series A Preferred Shares ") which shall be
convertible into the Company's Common Stock, par value $0.001 (the "Common
Stock"), for a total purchase price of up to Three Million Dollars ($3,000,000)
(the "Purchase Price"). The Investment Agreement provides that the Investor
shall deposit the Purchase Price in a segregated escrow account to be held by
the Escrow Agent in order to effectuate a disbursement to the Company at a
closing to be held as set forth in the Investment Agreement (the "Closing");
WHEREAS, Escrow Agent has agreed to accept, hold, and disburse the funds
deposited with it in accordance with the terms of this Agreement; and
WHEREAS, in order to establish the escrow of funds and to effect the
provisions of the Investment Agreement, the parties hereto have entered into
this Agreement.
NOW THEREFORE, in consideration of the foregoing, it is hereby agreed as
follows:
1. Definitions. The following terms shall have the following meanings when
used herein:
a. "Escrow Funds" shall mean the Purchase Price deposited with
Escrow Agent pursuant to this Agreement.
b. "Joint Written Direction" shall mean a written direction executed
by the Investor and the Company directing Escrow Agent to disburse the Escrow
Funds and the Series A Preferred Shares or to take or refrain from taking any
action pursuant to this Agreement.
c. "Escrow Period" shall begin with the commencement of the Offering
and shall terminate upon the earlier to occur of the following dates:
(i) The date upon which Escrow Agent has disbursed the Escrow
Funds in accordance with the terms of the Joint Written Direction to be executed
between the Investor and the Company; or
(ii) The date upon which a determination is made by the
Company and the Investor to terminate the Investment Agreement in which event
the Escrow Agent shall return the Escrow Funds to the Investor and the Series A
Preferred Shares to the Company.
During the period from the date hereof until the Closing, the Company and
the Investor are aware that they are not entitled to any funds received into
escrow and no amounts deposited in the Escrow Account shall become the property
of the Company or the Investor or any other entity, or be subject to the debts
of the Company or the Investor or any other entity.
2. Appointment of and Acceptance by Escrow Agent. The Investor and the
Company hereby appoint Escrow Agent to serve as Escrow Agent hereunder. Escrow
Agent hereby accepts such appointment and, upon receipt by wire transfer of the
Escrow Funds in accordance with Section 3 below, agrees to hold and disburse the
Escrow Funds in accordance with this Agreement.
a. The parties hereto acknowledge that the Escrow Agent is general
counsel to Cornell, a partner in the general partner of Cornell, and counsel to
the Cornell in connection with the transactions contemplated and referred
herein. The parties hereto agree that in the event of any dispute arising in
connection with this Escrow Agreement or otherwise in connection with any
transaction or agreement contemplated and referred herein, the Escrow Agent
shall be permitted to continue to represent the Investor and the Company will
not seek to disqualify such counsel.
3. Creation of Escrow Funds. On or prior to the date of the commencement
of the Offering, the parties shall establish an escrow account with the Escrow
Agent, which escrow account shall be entitled as follows: Medical Staffing
Solutions, Inc./Cornell Capital Partners, LP Escrow Account for the deposit of
the Escrow Funds. The Investor will wire the Purchase Price to the account of
the Escrow Agent as follows:
Bank: Wachovia, N.A. of New Jersey
Routing #: 000000000
Account #: 2000014931134
Name on Account: Xxxxx Xxxxxxxx Attorney Trust Account
Name on Sub-Account: Medical Staffing Solutions, Inc./Cornell Capital
Partners, LP Escrow account
4. Deposits into the Escrow Account. The Investor agrees that it shall
promptly deliver the Purchase Price for the payment of the Series A Preferred
Shares to the Escrow Agent for deposit in the Escrow Account.
5. Disbursements from the Escrow Account.
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a. Upon execution of the Investment Agreement and all related
transaction documents, and pending the Closing, the Investor shall deliver to
the Escrow Agent the Purchase Price and the company shall deliver to the Escrow
Agent the Series A Preferred Shares. Upon receipt of the Purchase Price and the
Series A Preferred Shares, the Escrow Agent shall notify the Company and the
Investor. On the Closing Date, on the terms and subject to the conditions
contained in the Investment Agreement, the Investor and the Company shall
execute and deliver a Joint Written Direction directing the Escrow Agent to
disburse the Escrow Funds and deliver the Series A Preferred Shares pursuant to
such Joint Written Direction, at which time the Escrow Agent shall (i) wire the
Escrow Funds, minus the unpaid structuring fees and expenses of Yorkville
Advisors Management, LLC, and in accordance with the Joint Written Direction, to
the Company, and (ii) deliver the Series A Preferred Shares to the Investor. In
disbursing the Escrow Funds and delivering the Series A Preferred Shares, the
Escrow Agent is authorized to rely upon such Joint Written Direction from the
Company and the Investor and may accept any signatory from the Company listed on
the signature page to this Agreement and any signature from the Investor that
Escrow Agent already has on file.
b. In the event the parties terminate the Investment Agreement or
the conditions to the Closing contained in the Investment Agreement are not
fulfilled, the Escrow Agent shall, upon written notification to the parties,
return the Escrow Funds to the Investor and return the Series A Preferred Shares
to the Company.
6. Collection Procedure. Escrow Agent is hereby authorized to deposit the
proceeds of each wire in the Escrow Account.
7. Suspension of Performance: Disbursement Into Court. If at any time,
there shall exist any dispute between the Company and the Investor with respect
to holding or disposition of any portion of the Escrow Funds or any other
obligations of Escrow Agent hereunder, or if at any time Escrow Agent is unable
to determine, to Escrow Agent's sole satisfaction, the proper disposition of any
portion of the Escrow Funds or Escrow Agent's proper actions with respect to its
obligations hereunder, or if the parties have not within thirty (30) days of the
furnishing by Escrow Agent of a notice of resignation pursuant to Section 9
hereof, appointed a successor Escrow Agent to act hereunder, then Escrow Agent
may, in its sole discretion, take either or both of the following actions:
a. Suspend the performance of any of its obligations (including
without limitation any disbursement obligations) under this Escrow Agreement
until such dispute or uncertainty shall be resolved to the sole satisfaction of
Escrow Agent or until a successor Escrow Agent shall be appointed (as the case
may be); provided however, Escrow Agent shall continue to invest the Escrow
Funds in accordance with Section 8 hereof; and/or
b. Petition (by means of an interpleader action or any other
appropriate method) any court of competent jurisdiction in any venue convenient
to Escrow Agent, for instructions with respect to such dispute or uncertainty,
and to the extent required by law, pay into such court, for holding and
disposition in accordance with the instructions of such court, all funds held by
it in the Escrow Funds, after deduction and payment to Escrow Agent of all fees
and expenses (including court costs and attorneys' fees) payable to, incurred
by, or expected to be incurred by Escrow Agent in connection with performance of
its duties and the exercise of its rights hereunder.
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c. Escrow Agent shall have no liability to the Company, the
Investor, or any person with respect to any such suspension of performance or
disbursement into court, specifically including any liability or claimed
liability that may arise, or be alleged to have arisen, out of or as a result of
any delay in the disbursement of funds held in the Escrow Funds or any delay in
with respect to any other action required or requested of Escrow Agent.
8. Investment of Escrow Funds. Escrow Agent shall deposit the Escrow Funds
in a non-interest bearing account.
If Escrow Agent has not received a Joint Written Direction at any time
that an investment decision must be made, Escrow Agent shall maintain the Escrow
Funds, or such portion thereof, as to which no Joint Written Direction has been
received, in a non-interest bearing account.
9. Resignation and Removal of Escrow Agent. Escrow Agent may resign from
the performance of its duties hereunder at any time by giving thirty (30) days'
prior written notice to the parties or may be removed, with or without cause, by
the parties, acting jointly, by furnishing a Joint Written Direction to Escrow
Agent, at any time by the giving of ten (10) days' prior written notice to
Escrow Agent as provided herein below. Upon any such notice of resignation or
removal, the representatives of the Investor and the Company identified in
Sections 13(a)(iv) and 13(b)(iv), below, jointly shall appoint a successor
Escrow Agent hereunder, which shall be a commercial bank, trust company or other
financial institution with a combined capital and surplus in excess of
$10,000,000.00. Upon the acceptance in writing of any appointment of Escrow
Agent hereunder by a successor Escrow Agent, such successor Escrow Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Escrow Agent, and the retiring Escrow Agent shall be
discharged from its duties and obligations under this Escrow Agreement, but
shall not be discharged from any liability for actions taken as Escrow Agent
hereunder prior to such succession. After any retiring Escrow Agent's
resignation or removal, the provisions of this Escrow Agreement shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Escrow Agent under this Escrow Agreement. The retiring Escrow Agent shall
transmit all records pertaining to the Escrow Funds and shall pay all funds held
by it in the Escrow Funds to the successor Escrow Agent, after making copies of
such records as the retiring Escrow Agent deems advisable and after deduction
and payment to the retiring Escrow Agent of all fees and expenses (including
court costs and attorneys' fees) payable to, incurred by, or expected to be
incurred by the retiring Escrow Agent in connection with the performance of its
duties and the exercise of its rights hereunder.
10. Liability of Escrow Agent.
a. Escrow Agent shall have no liability or obligation with respect
to the Escrow Funds except for Escrow Agent's willful misconduct or gross
negligence. Escrow Agent's sole responsibility shall be for the safekeeping,
investment, and disbursement of the Escrow Funds in accordance with the terms of
this Agreement. Escrow Agent shall have no implied duties or obligations and
shall not be charged with knowledge or notice or any fact or circumstance not
specifically set forth herein. Escrow Agent may rely upon any instrument, not
only as to its due execution, validity and effectiveness, but also as to the
truth and accuracy of any information contained herein, which Escrow Agent shall
in good faith believe to be genuine, to have been signed or presented by the
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person or parties purporting to sign the same and conform to the provisions of
this Agreement. In no event shall Escrow Agent be liable for incidental,
indirect, special, and consequential or punitive damages. Escrow Agent shall not
be obligated to take any legal action or commence any proceeding in connection
with the Escrow Funds, any account in which Escrow Funds are deposited, this
Agreement or the Purchase Agreement, or to appear in, prosecute or defend any
such legal action or proceeding. Escrow Agent may consult legal counsel selected
by it in any event of any dispute or question as to construction of any of the
provisions hereof or of any other agreement or its duties hereunder, or relating
to any dispute involving any party hereto, and shall incur no liability and
shall be fully indemnified from any liability whatsoever in acting in accordance
with the opinion or instructions of such counsel. The Company and the Investor
jointly and severally shall promptly pay, upon demand, the reasonable fees and
expenses of any such counsel.
b. Escrow Agent is hereby authorized, in its sole discretion, to
comply with orders issued or process entered by any court with respect to the
Escrow Funds, without determination by Escrow Agent of such court's jurisdiction
in the matter. If any portion of the Escrow Funds is at any time attached,
garnished or levied upon under any court order, or in case the payment,
assignment, transfer, conveyance or delivery of any such property shall be
stayed or enjoined by any court order, or in any case any order judgment or
decree shall be made or entered by any court affecting such property or any part
thereof, then and in any such event, Escrow Agent is authorized, in its sole
discretion, to rely upon and comply with any such order, writ judgment or decree
which it is advised by legal counsel selected by it, binding upon it, without
the need for appeal or other action; and if Escrow Agent complies with any such
order, writ, judgment or decree, it shall not be liable to any of the parties
hereto or to any other person or entity by reason of such compliance even though
such order, writ judgment or decree may be subsequently reversed, modified,
annulled, set aside or vacated.
11. Indemnification of Escrow Agent. From and at all times after the date
of this Agreement, the parties jointly and severally, shall, to the fullest
extent permitted by law and to the extent provided herein, indemnify and hold
harmless Escrow Agent and each director, officer, employee, attorney, agent and
affiliate of Escrow Agent (collectively, the "Indemnified Parties") against any
and all actions, claims (whether or not valid), losses, damages, liabilities,
costs and expenses of any kind or nature whatsoever (including without
limitation reasonable attorney's fees, costs and expenses) incurred by or
asserted against any of the Indemnified Parties from and after the date hereof,
whether direct, indirect or consequential, as a result of or arising from or in
any way relating to any claim, demand, suit, action, or proceeding (including
any inquiry or investigation) by any person, including without limitation the
parties to this Agreement, whether threatened or initiated, asserting a claim
for any legal or equitable remedy against any person under any statute or
regulation, including, but not limited to, any federal or state securities laws,
or under any common law or equitable cause or otherwise, arising from or in
connection with the negotiation, preparation, execution, performance or failure
of performance of this Agreement or any transaction contemplated herein, whether
or not any such Indemnified Party is a party to any such action or proceeding,
suit or the target of any such inquiry or investigation; provided, however, that
no Indemnified Party shall have the right to be indemnified hereunder for
liability finally determined by a court of competent jurisdiction, subject to no
further appeal, to have resulted from the gross negligence or willful misconduct
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of such Indemnified Party. If any such action or claim shall be brought or
asserted against any Indemnified Party, such Indemnified Party shall promptly
notify the Company and the Investor hereunder in writing, and the Investor and
the Company shall assume the defense thereof, including the employment of
counsel and the payment of all expenses. Such Indemnified Party shall, in its
sole discretion, have the right to employ separate counsel (who may be selected
by such Indemnified Party in its sole discretion) in any such action and to
participate and to participate in the defense thereof, and the fees and expenses
of such counsel shall be paid by such Indemnified Party, except that the
Investor and/or the Company shall be required to pay such fees and expense if
(a) the Investor or the Company agree to pay such fees and expenses, or (b) the
Investor and/or the Company shall fail to assume the defense of such action or
proceeding or shall fail, in the sole discretion of such Indemnified Party, to
employ counsel reasonably satisfactory to the Indemnified Party in any such
action or proceeding, (c) the Investor and the Company are the plaintiff in any
such action or proceeding or (d) the named or potential parties to any such
action or proceeding (including any potentially impleaded parties) include both
the Indemnified Party, the Company and/or the Investor and the Indemnified Party
shall have been advised by counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to the
Company or the Investor. The Investor and the Company shall be jointly and
severally liable to pay fees and expenses of counsel pursuant to the preceding
sentence, except that any obligation to pay under clause (a) shall apply only to
the party so agreeing. All such fees and expenses payable by the Company and/or
the Investor pursuant to the foregoing sentence shall be paid from time to time
as incurred, both in advance of and after the final disposition of such action
or claim. The obligations of the parties under this section shall survive any
termination of this Agreement, and resignation or removal of the Escrow Agent
shall be independent of any obligation of Escrow Agent.
The parties agree that neither payment by the Company or the Investor of
any claim by Escrow Agent for indemnification hereunder shall impair, limit,
modify, or affect, as between the Investor and the Company, the respective
rights and obligations of Investor, on the one hand, and the Company, on the
other hand.
12. Expenses of Escrow Agent. Except as set forth in Section 11 the
Company shall reimburse Escrow Agent for all of its reasonable out-of-pocket
expenses, including attorneys' fees, travel expenses, telephone and facsimile
transmission costs, postage (including express mail and overnight delivery
charges), copying charges and the like. All of the compensation and
reimbursement obligations set forth in this Section shall be payable by the
Company, upon demand by Escrow Agent. The obligations of the Company under this
Section shall survive any termination of this Agreement and the resignation or
removal of Escrow Agent.
13. Representations and Warranties.
a. The Investor makes the following representations and warranties
to Escrow Agent:
(i) The Investor has full power and authority to execute and
deliver this Agreement and to perform its obligations hereunder.
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(ii) This Agreement has been duly approved by all necessary
action of the Investor, and has been executed by duly authorized officers of the
Investor, enforceable in accordance with its terms.
(iii) The execution, delivery, and performance by the Investor
of this Agreement will not violate, conflict with, or cause a default under any
agreement of limited partnership of Investor, any applicable law or regulation,
any court order or administrative ruling or degree to which the Investor is a
party or any of its property is subject, or any agreement, contract, indenture,
or other binding arrangement.
(iv) Xxxx Xxxxxx has been duly appointed to act as the
representative of the Investor and has full power and authority to execute,
deliver, and perform this Escrow Agreement, to execute and deliver any Joint
Written Direction, to amend, modify, or waive any provision of this Agreement,
and to take any and all other actions as the Investor's representatives under
this Agreement, all without further consent or direction form, or notice to, the
Investor or any other party.
(v) No party other than the parties hereto has, or shall have,
any lien, claim or security interest in the Escrow Funds or any part thereof. No
financing statement under the Uniform Commercial Code is on file in any
jurisdiction claiming a security interest in or describing (whether specifically
or generally) the Escrow Funds or any part thereof.
(vi) All of the representations and warranties of the Investor
contained herein are true and complete as of the date hereof and will be true
and complete at the time of any disbursement from the Escrow Funds.
b. The Company makes the following representations and warranties to
the Escrow Agent:
(i) The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Nevada and has
full power and authority to execute and deliver this Agreement and to perform
its obligations hereunder.
(ii) This Agreement has been duly approved by all necessary
corporate action of the Company, including any necessary shareholder approval,
has been executed by duly authorized officers of the Company, enforceable in
accordance with its terms.
(iii) The execution, delivery, and performance by the Company
of this Agreement is in accordance with the Investment Agreement and will not
violate, conflict with, or cause a default under the certificate of
incorporation or bylaws of the Company, any applicable law or regulation, any
court order or administrative ruling or decree to which the Company is a party
or any of its property is subject, or any agreement, contract, indenture, or
other binding arrangement, including without limitation to the Investment
Agreement, to which the Company is a party.
(iv) Xx. X.X Xxxxx has been duly appointed to act as the
representative of the Company hereunder and has full power and authority to
execute, deliver, and perform this Agreement, to execute and deliver any Joint
Written Direction, to amend, modify or waive any provision of this Agreement and
to take all other actions as the Company's Representative under this Agreement,
all without further consent or direction from, or notice to, the Company or any
other party.
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(v) No party other than the parties hereto has, or shall have,
any lien, claim or security interest in the Escrow Funds or any part thereof. No
financing statement under the Uniform Commercial Code is on file in any
jurisdiction claiming a security interest in or describing (whether specifically
or generally) the Escrow Funds or any part thereof.
(vi) All of the representations and warranties of the Company
contained herein are true and complete as of the date hereof and will be true
and complete at the time of any disbursement from the Escrow Funds.
14. Consent to Jurisdiction and Venue. In the event that any party hereto
commences a lawsuit or other proceeding relating to or arising from this
Agreement, the parties hereto agree that the United States District Court for
the District of New Jersey shall have the sole and exclusive jurisdiction over
any such proceeding. If all such courts lack federal subject matter
jurisdiction, the parties agree that the Superior Court Division of New Jersey,
Chancery Division of Xxxxxx County shall have sole and exclusive jurisdiction.
Any of these courts shall be proper venue for any such lawsuit or judicial
proceeding and the parties hereto waive any objection to such venue. The parties
hereto consent to and agree to submit to the jurisdiction of any of the courts
specified herein and agree to accept the service of process to vest personal
jurisdiction over them in any of these courts.
15. Notice. All notices and other communications hereunder shall be in
writing and shall be deemed to have been validly served, given or delivered five
(5) days after deposit in the United States mails, by certified mail with return
receipt requested and postage prepaid, when delivered personally, one (1) day
delivered to any overnight courier, or when transmitted by facsimile
transmission and upon confirmation of receipt and addressed to the party to be
notified as follows:
If to the Investor, to: Cornell Capital Partners, LP
000 Xxxxxx Xxxxxx - Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Portfolio Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Escrow Agent, to: Xxxxx Xxxxxxxx, Esq.
000 Xxxxxx Xxxxxx - Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to the Company, to: Medical Staffing Solutions, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xx. X.X. Xxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx - Xxxxx 0000
Xxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Or to such other address as each party may designate for itself by like notice.
16. Amendments or Waiver. This Agreement may be changed, waived,
discharged or terminated only by a writing signed by the parties hereto. No
delay or omission by any party in exercising any right with respect hereto shall
operate as waiver. A waiver on any one occasion shall not be construed as a bar
to, or waiver of, any right or remedy on any future occasion.
17. Severability. To the extent any provision of this Agreement is
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition, or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
18. Governing Law. This Agreement shall be construed and interpreted in
accordance with the internal laws of the State of New Jersey without giving
effect to the conflict of laws principles thereof.
19. Entire Agreement. This Agreement constitutes the entire Agreement
between the parties relating to the holding, investment, and disbursement of the
Escrow Funds and sets forth in their entirety the obligations and duties of the
Escrow Agent with respect to the Escrow Funds.
20. Binding Effect. All of the terms of this Agreement, as amended from
time to time, shall be binding upon, inure to the benefit of and be enforceable
by the respective heirs, successors and assigns of the Investor, the Company, or
the Escrow Agent.
21. Execution of Counterparts. This Agreement and any Joint Written
Direction may be executed in counter parts, which when so executed shall
constitute one and same agreement or direction.
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22. Termination. Upon the first to occur of the disbursement of all
amounts in the Escrow Funds pursuant to Joint Written Directions or the
disbursement of all amounts in the Escrow Funds into court pursuant to Section 7
hereof, this Agreement shall terminate and Escrow Agent shall have no further
obligation or liability whatsoever with respect to this Agreement or the Escrow
Funds.
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IN WITNESS WHEREOF the parties have hereunto set their hands and seals the
day and year above set forth.
MEDICAL STAFFING SOLUTIONS, INC.
By: /s/ Xx. X.X. Xxxxx
-------------------------------------
Name: Xx. X.X. Xxxxx
Title: President
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
Its: General Partner
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Portfolio Manager and President
By: /s/ Xxxxx Xxxxxxxx, Esq.
-------------------------------------
Name: Xxxxx Xxxxxxxx, Esq.
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