GUARANTY
EXHIBIT 10.2
This Guaranty (“Guaranty”) dated as
of 3-30-2009, is entered into between CAPITAL CITY ENERGY GROUP, INC.
(“Guarantor”), in favor of CRESTMARK COMMERCIAL CAPITAL LENDING LLC
(“Creditor”).
RECITALS
A. Creditor
and HOTWELL SERVICES, INC. (“Client”) are entering into an ACCOUNTS RECEIVABLE
FINANCING AGREEMENT (the “Agreement”) pursuant to which Creditor will purchase
certain accounts receivable from Client.
B. In
order to induce Creditor to enter into the Agreement with Client, Guarantor has
agreed to enter into this Guaranty in order to guaranty any loans or advances or
other financial accommodations made or extended by Creditor.
ACCORDINGLY, in consideration of the
mutual covenants contained herein, the parties agree as follows:
AGREEMENT
1 GUARANTY
1.1 Guaranty of
Obligations. Guarantor, and any and all successor entities
resulting by operation of merger, law, or otherwise, including but not limited
to any successor debtor in possession of Guarantor as such term is used in
Chapter 11 of the United States Bankruptcy Code (11 U.S.C. § 1101 et seq.),
unconditionally, absolutely and irrevocably guarantees and promises to pay to
Creditor, upon the written demand of Creditor, in lawful money of the United
States of America and in immediately available funds, any and all indebtedness
and obligations (hereinafter collectively, the “Guaranteed Obligations”) of the
Client, and all successors-in-interest of Client by operation of law or
otherwise, including, but not limited to, any Trustee (as defined in the United
States Bankruptcy Code, 11 U.S.C. §101 et seq., or
successor statutes) or debtor-in-possession, and including, but not limited to,
any successor-in-interest arising out of any merger or reorganization involving
Client, whether Client is a surviving or disappearing person or entity as a
result of those transactions, to Creditor under the Agreement or any other note,
loan agreement, credit agreement, security agreement, pledge agreement,
mortgage, or other documents or instrument (hereinafter collectively, the
“Documents”) or otherwise.
The term “Guaranteed Obligations” is
used herein in its most comprehensive sense and includes all obligations of
Client to Creditor (including, without limitation, attorneys’ fees and expenses,
and unpaid interest, including interest that, but for the filing of a petition
in bankruptcy, would have accrued on the Guaranteed Obligations) now existing or
hereafter incurred or created, whether voluntarily or involuntarily, and however
arising, whether due or not due, absolute or contingent, liquidated or
unliquidated, whether Client may be liable jointly, severally, or solidarily
with others, whether recovery upon such indebtedness may be or hereafter becomes
barred by any statute of limitations or whether such indebtedness may be or
hereafter becomes otherwise unenforceable, and includes Client’s prompt, full
and faithful performance, observance and discharge of each and every term,
condition, agreement, representation, warranty, undertaking and provision to be
performed by Client under the Documents or otherwise. Guarantor
agrees that this Guaranty constitutes a guaranty of payment when due and not of
collection.
1.2 Unlimited
Guaranty. There are no dollar limitations on the amount of
Guarantor’s liability under this Guaranty.
1.3 Continuing
Guaranty. This Guaranty is a continuing guaranty and shall
remain effective until the Guaranteed Obligations have been fully paid,
performed and discharged as provided in Section 10 and Creditor has given
written notice of that fact to Guarantor.
1.4 Solidary
Liability. Guarantor agrees that its liability and obligations
in favor of Creditor shall be joint, several and in solidor with Client and all
other guarantors of the Guaranteed Obligations, and that a separate action or
actions may be brought and prosecuted against Guarantor to enforce Creditor’s
rights under this Guaranty, whether action is brought against Client or whether
Client is joined in any such action or actions. Guarantor agrees that
any releases which may be given by Creditor to Client or any other guarantor
shall not release it from this Guaranty.
2 SECURITY
INTEREST
As collateral securing the
Guaranteed Obligations, Guarantor grants to Creditor a continuing security
interest in and to any collateral now or hereafter described in any form UCC-1
filed against Guarantor naming Creditor as the secured party, and all of
Guarantor’s right, title and interest in and to the following property, now
owned and hereafter acquired:
2.1 All
accounts, chattel paper, general intangibles, including, but not limited to, tax
and duty refunds, registered and unregistered patents, trademarks, service
marks, copyrights, trade names, applications for the foregoing, trade secrets,
customer lists, licenses, whether as licensor or licensee, and existing and
future leasehold interest in equipment, and fixtures, documents,
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instruments,
deposit accounts, certificates of deposit, securities, and all rights of
Guarantor as a seller of goods, including rights of reclamation, replevin and
stoppage in transit;
2.2 All
goods, including, but not limited to the following:
2.2.1 All
inventory, wherever located;
2.2.2 All
equipment and fixtures, wherever located, and all additions, substitutions,
replacements (including spare parts), and accessions thereof and
thereto;
2.3 All
books and records relating to all of the foregoing property and interest in
property, including, without limitation, all computer programs, printed output
and computer readable data in the possession or control of Guarantor, any
computer service bureau or other third party; and
2.4 All
proceeds of the foregoing, including, but not limited to, all insurance
proceeds, all claims against third parties of loss or destruction of or damage
to any of the foregoing, and all income from the lease or rental of any of the
foregoing.
3 SPECIAL POWER OF
ATTORNEY
Guarantor hereby grants Creditor an
irrevocable power of attorney (which, being coupled with an interest, is
irrevocable) for the purpose of acting on Guarantor’s behalf to:
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3.1
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endorse
or sign Guarantor’s name on any checks or other
instruments
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which
come into Creditor’s possession with respect to Client’s accounts receivable;
and
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3.2
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negotiate,
transfer, deposit, and otherwise deal with such checks or
other
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instruments
as the sole owner thereof.
In granting this Power of Attorney,
Guarantor hereby cancels and revokes all previous powers of attorney in respect
of the matters comprised herein which have been granted to any other
person.
4 INDEMNITY
4.1 Indemnity. In
addition to the payment of expenses pursuant to Section 11.1.2, Guarantor agrees
to indemnify, defend, exonerate, pay and hold Creditor and the officers,
directors, employees and agents of Creditor (the “Indemnitees”) harmless from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, causes of action, judgments, suits, claims, costs, expenses and
disbursements of any kind or nature whatsoever (including, without limitation,
the fees and disbursements of counsel to Creditor and expert witness fees and
disbursements) for such Indemnitees in connection with any investigative,
administrative or judicial proceeding, whether or not such Indemnitee shall be
designated a party thereto, that may be imposed on, incurred by or asserted
against such Indemnitee, in any manner relating to or arising out of or in
connection with this Guaranty (the “Indemnified
Liabilities”). Notwithstanding the foregoing, Indemnified Liabilities
shall not include liabilities, obligations, losses, damages, penalties, actions,
causes of action, judgments, suits, claims, costs, expenses and disbursements to
the extent caused by or resulting from the willful misconduct or gross
negligence of such Indemnitee.
4.2 Notice. Each
Indemnitee will promptly notify Guarantor of each event of which it has
knowledge that may give rise to a claim under this Section.
4.3 Defense of
Actions. If any investigative, judicial or administrative
proceeding arising in connection with any of the Indemnified Liabilities is
brought against any Indemnitee indemnified or intended to be indemnified
pursuant to this Section, Guarantor, to the extent and in the manner directed by
the Indemnitee or intended Indemnitee, will resist and defend such action, suit
or proceeding or cause the same to be resisted and defended by counsel
designated by Guarantor (which counsel shall be satisfactory to the Indemnitee
or intended Indemnitee). Each Indemnitee will use its best efforts to
cooperate in the defense of any such action, suit or proceeding. To
the extent that the undertaking to indemnify, pay and hold harmless set forth in
the preceding sentence may be unenforceable because it is violative of any law
or public policy, Guarantor shall make the maximum contribution to the payment
and satisfaction of each of the Indemnified Liabilities that is permissible
under applicable law.
5 CONSENTS BY
GUARANTOR
5.1 Consents. Guarantor
hereby authorizes Creditor, without notice or demand and without affecting
Guarantor’s liability hereunder, from time to time to:
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5.1.1 Changes in
Terms. Renew, compromise, extend, refinance, accept partial
payments, accelerate or restructure the Guaranteed Obligations or otherwise
change the time for payment or the terms of any of the Guaranteed Obligations,
or any part thereof, including, without limitation, increasing or decreasing the
rate of interest thereof;
5.1.2 Amendment of
Documents. Waive, amend, rescind or modify any of the terms or
provisions of the Documents or any agreement or document executed in connection
therewith;
5.1.3 Liquidation of Guaranteed
Obligations. Settle, release, compromise, collect or otherwise
liquidate the Guaranteed Obligations, or any part thereof, and any security or
collateral therefor in any manner as Creditor may determine in its sole
discretion;
5.1.4 Collateral. Take
and hold collateral to secure the payment of the Guaranteed Obligations and
exchange, enforce, waive and release any such collateral, and apply such
collateral and direct the order or manner of sale thereof as Creditor in its
sole discretion may determine;
5.1.5 Releases. Release
the Client, or release or substitute any one or more other
guarantors;
5.1.6 Assignment. Assign,
without notice, this Guaranty in whole or in part and Creditor’s rights
hereunder to any one at any time;
5.1.7 Application of
Payments. Apply payments on account of the Guaranteed
Obligations, from any source in any manner deemed to be in the best interests of
Creditor in the sole discretion of Creditor, including the application of
payments on a “last-in-first-out basis;” and
5.1.8 Other
Guaranties. Take other guaranties from other persons and/or
entities to further secure the Guaranteed Obligations.
5.2 Non-Release of
Guarantor. Guarantor agrees that Creditor may do any or all of
the foregoing in such manner, upon such terms, and at such times as Creditor, in
its sole discretion, deems advisable, without, in any way or respect, impairing,
affecting, reducing or releasing Guarantor from its undertakings hereunder and
Guarantor hereby consents to each and all of the foregoing acts, events and
occurrences.
6 WAIVERS
6.1 Defenses. Guarantor
hereby waives any right to assert against Creditor as a defense, counterclaim,
setoff or crossclaim, all defenses including, but not limited to, the duty to
act in a commercially reasonable manner, and further including, but not limited
to, any defense arising by reason of any modification of the Guaranteed
Obligations in any form whatsoever, any counterclaim, any setoff or any
crossclaim which Guarantor may now or at any time hereafter have under
applicable law, rule, arrangement or relationship against Client, Creditor or
any other party. Guarantor waives all defenses, counterclaims and
setoffs of any kind or nature arising, directly or indirectly, from the present
or future lack of perfection, sufficiency, validity or enforceability of the
Documents or any security interest thereunder.
6.2 Election of
Remedies. Guarantor hereby waives any defense arising by
reason of any claim or defense based upon an election of remedies by Creditor,
which in any manner impairs, affects, reduces, releases, destroys or
extinguishes Guarantor’s subrogation rights, rights to proceed against Client
for reimbursement, contribution, indemnity or any other rights of Guarantor to
proceed against any other person or security.
6.3 Presentment, Demand and
Notice. Guarantor waives all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of
dishonor, notices of default, notice of acceptance of this Guaranty, diligence,
and notices of the existence, or creation of the Guaranteed Obligations or of
new or additional Guaranteed Obligations incurred or created after the date of
this Guaranty, and all other notices or formalities to which Guarantor may be
entitled under applicable law.
6.4 Remedies Against
Client. As a condition to payment or performance by Guarantor
under this Guaranty, Creditor shall not be required to, and Guarantor hereby
waives any and all rights to require Creditor to, prosecute or seek to enforce
any remedies against Client or any other party liable to Creditor on account of
the Guaranteed Obligations or to require Creditor to seek to enforce or resort
to any remedies with respect to any security interests, liens or encumbrances
granted to Creditor by Client or any other party on account of the Guaranteed
Obligations.
6.5 Subrogation
Rights. Guarantor shall have no right of subrogation,
reimbursement, exoneration, contribution or any other rights that would result
in Guarantor being deemed a creditor of Client under the federal Bankruptcy Code
or any other law. Guarantor irrevocably waives all such rights, the
right to assert any such rights and any right to enforce any remedy which
Creditor now or may hereafter have against Client and hereby irrevocably waives
any benefit of and any right to participate in, any security now or hereafter
held by Creditor, however acquired.
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6.6 Claims Against
Client. Guarantor hereby waives any and all claims which
Guarantor may now or hereafter have against Client, whether arising hereunder or
otherwise.
6.7 Revocation. Guarantor
shall have no right to revoke this continuing guaranty.
6.8 Rights to Compel Action by
Creditor. Guarantor shall have no right to require Creditor to
proceed against Client, to proceed against or exhaust any security in any
particular order, to apply property recovered from Client to discharge or reduce
the Guaranteed Obligations hereunder, and to require diligence in taking any
action to collect on the obligations of Client or to collect on the Guaranteed
Obligations hereunder.
Each of the waivers set forth above is
made by Guarantor with Guarantor’s full knowledge of the significance and
consequences resulting therefrom. Guarantor hereby agrees that these
waivers are reasonable and not contrary to public policy, and agrees that
Guarantor will not contest these waivers on grounds of reasonableness or
contravention to public policy. However, in the event any of these
waivers or any part thereof are nevertheless deemed contrary to public policy,
Guarantor agrees that those waivers and/or those parts of waivers not deemed
contrary to public policy are severable and will survive with full force and
effect.
7 SUBORDINATION
Any and all present and future debts
and obligations of Client to Guarantor are hereby postponed in favor of and
subordinated to the full payment and performance of all present and future debts
and obligations of Client to Creditor. Any instruments now or
hereafter evidencing any indebtedness of Client to Guarantor shall be marked
with a legend that the same are subject to this Guaranty and, if Creditor so
requests, shall be delivered to Creditor. Upon the liquidation,
bankruptcy, or distribution of any of Client’s assets, Guarantor shall assign to
the Creditor all of Guarantor’s claims on account of such indebtedness so that
Creditor shall receive all dividends and payments on such indebtedness until
payment in full of the Guaranteed Obligations. This Section shall
constitute such an assignment if Guarantor fails to execute and deliver such an
assignment. All monies or other property of Guarantor at any time in
Creditor’s possession may be held by Creditor as security for any and all
obligations of Guarantor to Creditor, now existing or hereafter arising, whether
absolute or contingent, whether due or to become due, and whether under this
Guaranty or otherwise. Guarantor also agrees that Creditor’s books
and records showing the account between Creditor and Client shall be admissible
in any action or proceeding and shall be binding upon Guarantor for the purpose
of establishing the terms set forth therein and shall constitute prima facie
proof thereof.
8 FINANCIAL CONDITION OF
CLIENT
Guarantor is presently informed of the
financial condition of Client and of all other circumstances which a diligent
inquiry would reveal and which bear upon the risk of nonpayment of the
Guaranteed Obligations. Guarantor hereby covenants that it will
continue to keep itself informed of Client’s financial condition and of all
other circumstances which bear upon the risk of nonpayment. Absent a
written request for such information by Guarantor to Creditor, Guarantor hereby
waives its right, if any, to require, and Creditor is relieved of any obligation
or duty to disclose to Guarantor any information which Creditor may now or
hereafter acquire concerning such condition or circumstances.
9 REPRESENTATIONS AND
WARRANTIES
Guarantor represents and warrants to
Creditor that the following statements are true, correct and complete as of the
date of this Guaranty:
9.1 No
Conflict. Neither the execution and delivery of this Guaranty
nor the fulfillment of or compliance with the terms and conditions of this
Guaranty conflicts with or shall result in a breach of the terms, conditions or
provisions of the Articles or Certificate of Incorporation or Bylaws of
Guarantor or any agreement or instrument to which Guarantor is now a party or by
which it is bound, or constitutes a default under any of foregoing, or results
in the creation or imposition of any lien, charge or encumbrance whatsoever upon
any of the property or assets of Guarantor under the terms of any instrument or
agreement or violates any provision of law or any order of any court or other
agency of government.
9.2 No Actions or
Proceedings. There is no pending or threatened suit or
proceeding affecting Guarantor before any court, governmental agency, or
arbitrator which might affect the enforceability of this Guaranty or the
business, operations, assets or condition of Guarantor.
9.3 Adequate
Consideration. The consideration given or provided, or to be
given or provided, by Creditor in connection with this Guaranty is adequate and
satisfactory in all respects to support this Guaranty and Guarantor’s
obligations hereunder.
9.4 Full
Information. Creditor has made no warranty or representation
concerning Client’s creditworthiness, and Guarantor has full information
concerning the financial condition of Client and has adequate means of
monitoring the financial condition of Client in the future, such that Guarantor
has and will continue to be adequately informed of the financial condition of
Client.
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9.5 Solvency. Guarantor
is solvent and the execution of this Guaranty does not make Guarantor insolvent
for any reason whatsoever.
10 TERMINATION OF
GUARANTY
10.1 Guarantor’s
obligations under this Guaranty shall continue in full force and effect and this
Guaranty shall not terminate until thirty days after the occurrence of all of the
following:
10.1.1 The
Guaranteed Obligations have been fully paid, performed and
discharged;
10.1.2 The
Creditor is not under any obligation to extend financial accommodations to
Client;
10.1.3 Guarantor
has delivered the General Release required to be delivered by the Agreement upon
termination of the Agreement, and this General Release has been sent after the
occurrence of the events described in Sections 10.1.1 and 10.1.2
above.
10.2 The
Guaranteed Obligations shall not be considered fully paid, performed and
discharged unless and until all payments by Client to Creditor are no longer
subject to any right on the party of any person whomsoever, including, but not
limited to, Client, Client as debtor-in-possession, or any trustee or receiver
in bankruptcy, to set aside such payments or seek to recoup the amount of such
payments, or any part thereof. The foregoing shall include, by way of
example and not by way of limitation, all rights to recover preferences voidable
under Title 11 of the United States Code.
10.3 In
the event that any such payments by Client to Creditor are set aside after the
making thereof, in whole or in part, or settled without litigation, to the
extent of such settlement, all of which is within Creditor’s discretion,
Guarantor shall be liable for the full amount Creditor is required to repay plus
costs, interest, attorneys’ fees and any and all expenses which Creditor paid or
incurred in connection therewith.
11 MISCELLANEOUS
11.1 Costs and
Expenses. Guarantor agrees to pay, on Creditor’s demand, all
of the following costs and expenses, whether incurred before or after the
commencement of any case with respect to Client of the Guaranteed Obligations
under the United States Bankruptcy Code or any successor statute:
11.1.1 all
attorneys’ fees and all other costs and out-of-pocket expenses which may be
incurred by Creditor in the negotiation, preparation, enforcement or collection
of this Guaranty and the Guaranteed Obligations, whether or not suit is filed;
and
11.1.2 all
fees, costs, and expenses, including, without limitation, attorneys’ fees,
costs, and expenses, which Creditor incurs in enforcing any judgment rendered in
connection with this Guaranty. This provision is severable from all
other provisions hereof and shall survive, and not be deemed merged into, any
such judgment.
11.2 Headings. The
Section and other headings contained in this Guaranty are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Guaranty.
11.3 Governing
Law. The validity, construction and performance of this
Guaranty shall be governed by the laws, without regard to the laws as to choice
or conflict of laws, of the State of Louisiana.
11.4 Entire
Agreement. This Guaranty embodies the entire agreement and
understanding between the parties pertaining to the subject matter of this
Guaranty, and supersedes all prior agreements, understandings, negotiations,
representations and discussions, whether verbal or written, of the parties
pertaining to that subject matter.
11.5 Binding
Effect. The provisions of this Guaranty shall bind and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
11.6 Parties in
Interest. Nothing in this Guaranty, expressed or implied, is
intended to confer on any person or entity other than the parties any right or
remedy under or by reason of this Guaranty.
11.7 Notices. Any
written notice or communication required or permitted by this Guaranty to be
given to Guarantor shall be deemed sufficiently given when such notice is (1)
mailed postage prepaid by certified or registered mail, return receipt
requested, or (2) courier delivered personally to the party concerned at the
address set forth herein, or (3) facsimile transmitted to the party concerned at
the telecopier number given by the respective party. All notices from
Guarantor to Creditor shall be effective 5 days after actual receipt by an
officer of Creditor at Creditor’s offices set forth above.
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11.8 Amendment and
Waiver. This Guaranty may be amended, modified or supplemented
only by a writing executed by each of the parties. Any party may in
writing waive any provision of this Guaranty to the extent such provision is for
the benefit of the waiving party. No action taken pursuant to this
Guaranty, including any investigation by or on behalf of any party, shall be
deemed to constitute a waiver by that party of its or any other party’s
compliance with any representations or warranties or with any provisions of this
Guaranty. No waiver by any party of a breach of any provision of this
Guaranty shall be construed as a waiver of any subsequent or different breach,
and no forbearance by a party to seek a remedy for noncompliance or breach by
another party shall be construed as a waiver of any right or remedy with respect
to such noncompliance or breach.
11.9 Waiver of Right to Trial by
Jury. IN RECOGNITION OF THE HIGHER COSTS AND DELAY WHICH MAY
RESULT FROM A JURY TRIAL, GUARANTOR AND CREDITOR WAIVE ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING HEREUNDER, OR
(2) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO WITH RESPECT HERETO OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.10 Prompt
Action. Time is of the essence with respect to each provision
of this Guaranty.
11.11 Severability. The
invalidity or unenforceability of any particular provision of this Guaranty
shall not affect the other provisions, and this Guaranty shall be construed in
all respects as if any invalid or unenforceable provision were
omitted.
11.12 Further
Action. Each party agrees to perform any further acts and to
execute and deliver any other documents which may be reasonably necessary to
effect the provisions of this Guaranty.
11.13 Survival of Representations
and Warranties. All representations and warranties of
Guarantor contained in this Guaranty shall survive the execution and delivery of
this Guaranty and shall continue until any and all Guaranteed Obligations have
been fully paid, performed and discharged in full.
IN WITNESS WHEREOF, the parties hereto
have caused this Guaranty to be duly executed as of the date and year first
above written.
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WITNESSES:
Sign:
/s/ Xxxxxxx X. Xxxxxxxx
Print:
Xxxxxxx X. Xxxxxxxx
Sign:
/s/ Xxxxxx Xx Xxxxxx
Print:
Xxxxxx Xx Xxxxxx
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Authorized Signer
By: /s/ Xxxxxx X. Coffee
Print Name: Xxxxxx X. Coffee
Title: President
Federal Tax ID
Number: 00-0000000
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