SECOND AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
EXHIBIT 10.51
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT (the "Amendment"), dated as of September 29, 2010, among Inuvo, Inc. (f/k/a Kowabunga! Inc., f/k/a Think Partnership, Inc.), a Nevada corporation ("Borrower"), each of the Guarantors signatory hereto (the "Guarantors") and Xxxxx Fargo Bank, N.A., successor by merger to Wachovia Bank, National Association ("Bank").
WITNESSETH:
WHEREAS, Bank has made available to Borrower a secured credit facility pursuant to the terms and conditions of the following: (i) that certain Second Amended and Restated Loan Agreement, dated as of December 24, 2009, between Borrower and Bank, as amended, restated, supplemented or modified from time to time (as amended, restated, supplemented or otherwise modified from time to time, the "Loan Agreement"); (ii) that certain Amended and Restated Guaranty Agreement, dated as of February 27, 2008, between Borrower, the Guarantors and Bank, as amended, restated, supplemented or modified from time to time (as amended, restated, supplemented or otherwise modified from time to time, the "Guaranty Agreement"); (iii) that certain Amended and Restated Security Agreement, dated as of February 27, 2008, between Borrower, the Guarantors and Bank, as amended, restated, supplemented or modified from time to time (as amended, restated, supplemented or otherwise modified from time to time, the "Security Agreement"); (iv) that certain Second Amended and Restated Revolving Credit Promissory Note in the original principal amount of $5,300,000 dated as of December 24, 2009, executed by Borrower payable to the order of Bank, as amended, restated, supplemented or modified from time to time (as amended, restated, supplemented or otherwise modified from time to time, the "Revolving Credit Note"); (v) that certain Second Amended and Restated Term Promissory Note in the original principal amount of $4,142,806.14 dated as of December 24, 2009, executed by Borrower payable to the order of Bank, as amended, restated, supplemented or modified from time to time (as amended, restated, supplemented or otherwise modified from time to time, the "Term Note"); (vi) that certain Letter of Credit dated September 26, 2007 in the original face amount of $475,000 (reference number SM227727) (as amended, restated, supplemented or otherwise modified from time to time, "Letter of Credit #SM227727"); and (vii) all other documents executed in connection therewith, as amended, restated,.supplemented or modified from time to time (collectively with the Loan Agreement, the Guaranty Agreement, the Security Agreement, the Revolving Credit Note, the Term Note and Letter of Credit #SM227727, the "Loan Documents"); and
WHEREAS, Borrower and Guarantors have requested that Bank agree to amend the Loan Agreement as further set forth below.
NOW, THEREFORE, in consideration of the premises and agreements contained herein, the parties hereto hereby agree as follows:
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1. Definitions, All capitalized terms used herein and not otherwise defined shall have the respective meanings provided to such terms in the Loan Documents, as amended hereby.
2. Amendment to the Loan Agreement. The "Financial Covenants" paragraph of the Loan Agreement is hereby amended by deleting the "EBITDA" definition in the "Funded Debt to EBITDA" section of the "Financial Covenants" paragraph in its entirety and substituting the following new "EBITDA" definition in lieu thereof:
"EBITDA" shall mean the sum of earnings before interest, taxes, depreciation, amortization, stock based compensation expenses and non-cash expenses attributable to the December 31, 2009 impairment of intangible assets related to the company known as iLead Media in the approximate amount of $850,000 and, so long as the following sales occur before December 31, 2010, any losses (or gains) and closing expenses related to the sale of MarketSmart Advertising, Inc., RightStuff, Inc., Checkup Marketing, Inc., Exact Supplement, LLC and Real Estate School Online Inc.; and
3. Consent to Sale of MarketSmart Advertising, Inc., RightStuff. Inc. and Checkup Marketing, Inc. The Bank hereby consents to the sale of MarketSmart Advertising, Inc., RightStuff, Inc. and Checkup Marketing, Inc.; provided that (i) such sale is consummated in all material respects in accordance with the terms and conditions of the draft Asset Sale/Purchase Agreement previously provided to the Bank between MarketSmart Advertising, Inc., RightStuff, Inc. and Checkup Marketing, Inc., as seller, and The Xxxxx Agency, Inc., as buyer (the "MarketSmart Sale Agreement"), (ii) Borrower provides a final executed copy of the MarketSmart Sale Agreement to Bank promptly after execution and delivery and no material provision of the MarketSmart Sale Agreement shall have been amended, modified or waived since the prior draft provided to Bank without the prior written consent of Bank, (iii) Borrower provides the Bank with copies of such additional documents and information relating to the MarketSmart Sale Agreement as the Bank shall reasonably request and (iv) receipt by the Bank of all related Net Proceeds received by Borrower and Guarantors in connection with the Market Sale Agreement. Upon receipt by the Bank of all related Net Proceeds (as defined in the Loan Agreement) by December 31, 2010 (such aggregate amount not to be less than $766,636.12) in connection with the Market Sale Agreement, Bank hereby agrees to release all liens and security interest in the assets of MarketSmart Advertising, Inc., RightStuff, Inc. and Checkup Marketing, Inc. (including, without limitation, releasing those liens documented in the financing statements filed with the North Carolina Secretary of State as No. 20060008665E, 20060008671A, & 20060008667G).
4. Consent to Sale of Exact Supplement. LLC. The Bank hereby consents to the sale of Exact Supplement, LLC; provided that (i) such sale is consummated in all material respects in accordance with the terms and conditions of the Asset Purchase Agreement, dated June 3, 2010 between Exact Supplement, LLC, as seller, Omega Direct Marketing, LLC, as buyer, and Inuvo, Inc., as stockholder (the "Exact Supplement Sale Agreement"), (ii) no material provision of the Exact Supplement Sale Agreement shall have been amended, modified or waived since the date of the Exact Supplement Sale Agreement without the prior written consent of the Bank, (iii) the Borrower provides the Bank with copies of such additional documents and information relating to the Exact Supplement Sale Agreement as the Bank shall reasonably request (including, without limitation, delivery to the Bank of monthly revenue statements and true-up statements pursuant to Section 2 of the Exact Supplement Sale Agreement) and (iv) receipt by the Bank of all related Net Proceeds received by Borrower and Guarantors in connection with the Exact Supplement Sale Agreement. Upon receipt by the Bank of all related Net Proceeds in connection with the Exact Supplement Sale Agreement, Bank hereby agrees to release all liens and security interest in the assets of Exact Supplement, LLC.
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5. Consent to Sale of Real Estate School Online Inc. The Bank hereby consents to the sale of Real Estate School Online Inc.; provided that (i) such sale is consummated in all material respects in accordance with the a sale/purchase agreement on terms and conditions reasonably satisfactory to Bank, (ii) Borrower provides the Bank with copies of such additional documents and information relating to the sale of Real Estate School Online Inc. as the Bank shall reasonably request and (iii) receipt by the Bank of all related and Net Proceeds received by Borrower and Guarantors in connection with the sale of Real Estate School Online Inc. Upon receipt by the Bank of all related Net Proceeds in connection with the sale of Real Estate School Online Inc., Bank hereby agrees to release all liens and security interest in the assets of Real Estate School Online Inc.
6. Reaffirmations by Borrower and the Guarantors.
(a) Acknowledgment of Obligations. Borrower and Guarantors hereby acknowledge, confirm and agree that, as of September 24, 2010, (a) Borrower is indebted to Bank in respect of the Revolving Credit Note in the principal amount of $4,232,000.00, (b) Borrower is indebted to Bank in respect of the Term Note in the aggregate principal amount of $1,749,806.14 and (c) Letter of Credit #SM227727 remains outstanding and undrawn in the face amount of $475,000. All such Loans, together with interest accrued and accruing thereon, and all other Obligations, fees, costs, expenses and other charges now or hereafter payable by Borrower to Bank, in accordance with the Loan Documents and the Swap Agreements (including this Agreement), are unconditionally owing by Borrower and Guarantors to Bank without offset, defense or counterclaim of any kind, nature or description whatsoever.
(b) Acknowledgment of Security Interests. Except as otherwise set forth herein, Borrower and Guarantors hereby acknowledge, confirm and agree that Bank has and shall continue to have valid, enforceable and perfected first-priority liens upon and security interests in the Collateral heretofore granted to Bank pursuant to the Loan Documents or otherwise granted to or held by Bank.
7. Conditions to Effectiveness. This Amendment shall become effective as of the date when the following conditions have been met (the "Effective Date"):
(a) Bank shall have received an original of this Amendment duly authorized, executed and delivered by Borrower, the Guarantors and by Bank (whether such parties shall have signed the same or different copies);
(b) Borrower shall have reimbursed directly to K&L Gates, LLP all reasonable fees and expenses incurred in connection with the Loan and this Amendment; and
(c) Bank shall have received any other documents or instruments reasonably requested by Bank in connection with the execution of this Amendment; and
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8. Representations and Warranties. After giving effect to the amendments set forth herein, Borrower and each Guarantor hereby certifies that (a) each of the representations and warranties set forth in the Loan Agreement, the Revolving Credit Note, the Term Note, the Guaranty Agreement, the Security Agreement and the other Loan Documents is true and correct in all material respects as of the date hereof as if fully set forth herein (except for any representation and warranty made as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date), (b) no Default has occurred and is continuing as of the date hereof and (c) the execution, delivery, and performance of this Amendment have been authorized by all requisite corporate action.
9. Confirmation of all Loan Documents. By their execution hereof, Borrower and each Guarantor hereby expressly (a) consents to the modifications and amendments set forth in this Amendment, (b) reaffirms all of its respective covenants, representations, warranties and other obligations set forth in the Loan Agreement, the Revolving Credit Note, the Term Note, the Guaranty Agreement, the Security Agreement and each of the Loan Documents to which it is a party and (c) acknowledges, represents and agrees that its respective covenants, representations, warranties and other obligations set forth in the Loan Agreement, the Revolving Credit Note, the Term Note, the Guaranty Agreement, the Security Agreement and each of the Loan Documents to which it is a party remain in full force and effect.
10. Release.
(a) In consideration of the agreements of Bank contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Borrower and Guarantors, each on behalf of itself and its successors, assigns, and other legal representatives hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges Bank, and its successors and assigns, and its present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees, agents and other representatives (Bank and all such other Persons being hereinafter referred to collectively as the "Releasees" and individually as a "Releasee"), of and from all demands, actions, causes of action, suits, controversies, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever (individually, a "Claim" and collectively, "Claims") of every name and nature, known or unknown, suspected or unsuspected, both at law and in equity, which Borrower, Guarantor or any of their respective successors, assigns, or other legal representatives may now or hereafter own, hold, have or claim to have against the Releasees or any iiLthem_fQr,-upon. or hy reasori-of_any_circumstance, action, cause or thing whatsoever that arose or has arisen at any time on or prior to the day and date of this Amendment, for or on account of, or in relation to, or in any way in connection with any of the Loan Agreement, the Swap Agreements, the other Loan Documents or this Amendment or transactions thereunder or related thereto.
(b) Borrower and Guarantors each understands, acknowledges and agrees that the release set forth above may be pleaded as a full and complete defense and may be used as a basis for an injunction against any action, suit or other proceeding that may be instituted, prosecuted or attempted in breach of the provisions of such release.
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(c) Borrower and Guarantors each agrees that no fact, event, circumstance, evidence or transaction that could now be asserted or that may hereafter be discovered that relate to conduct prior to the date of this Amendment shall affect in any manner the final, absolute and unconditional nature of the release set forth above.
11. Covenant Not to Xxx. Borrower and Guarantors, each on behalf of itself and its successors, assigns, and other legal representatives, hereby absolutely, unconditionally and irrevocably, covenants and agrees with and in favor of each Releasee that it will not xxx (at law, in equity, in any regulatory proceeding or otherwise) any Releasee on the basis of any Claim released, remised and discharged by Borrower pursuant to Section 11 above. If Borrower or any Guarantor, or any of their respective successors, assigns or other legal representatives, violates the foregoing covenant, Borrower and Guarantors, each for itself and its successors, assigns and legal representatives, agrees to pay, in addition to such other damages as any Releasee may sustain as a result of such violation, all attorneys' fees and costs incurred by any Releasee as a result of such violation.
12. Costs and Expenses. Borrower absolutely and unconditionally agrees to pay to Bank in full within ten (10) days of request for payment expenses which shall at any time be incurred or sustained by Bank as a consequence of or in any way in connection with the preparation, negotiation, execution, or delivery of this Amendment and any agreements prepared, negotiated, executed or delivered in connection with the transactions contemplated hereby, and in connection with any amendment or enforcement of this Amendment.
13. Miscellaneous.
(a) This Amendment is limited and, except as set forth herein, shall not constitute a modification, acceptance or waiver of any provision of the Loan Agreement, the Revolving Credit Note, the Term Note, any Loan Document or any other document or instrument entered into in connection therewith.
(b) This Amendment may be executed in multiple counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement, and the signature pages from any counterpart may be appended to any other counterpart to assemble fully-executed counterparts. Counterparts of this Amendment may be exchanged via electronic means, and a facsimile of any party's signature shall be deemed to be an original signature for all purposes.
(c) This Amendment and the rights and obligations of the parties hereunder shall be construed in accordance with and governed by the laws of the State of North Carolina without giving effect to the conflicts of law provision thereof.
(d) On and after the effectiveness of this Amendment, each reference in the Loan Agreement, the Revolving Credit Note, the Term Note or any other Loan Document shall mean and be a reference to the Loan Agreement, the Revolving Credit Note, the Term Note and any other Loan Document as amended by this Amendment. This Amendment constitutes a "Loan Document".
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the day and year first above written.
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INUVO, INC (formerly known as KOWABUNGA! INC.), a Nevada corporation
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By:
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/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
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Title: Chief Financial Officer
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| [CORPORATE SEAL] |
CHERIS, INC, a Florida corporation
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By:
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/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
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Title: Chief Financial Officer
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| [CORPORATE SEAL] |
CHECKUP MARKETING, INC., a North Carolina corporation
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By:
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/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
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Title: Chief Financial Officer
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| [CORPORATE SEAL] |
RIGHTSTUFF INC., a North Carolina corporation
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By:
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/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
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Title: Chief Financial Officer
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| [CORPORATE SEAL] |
MARKETSMART ADVERTISING, INC., a North Carolina corporation
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By:
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/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
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Title: Chief Financial Officer
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| [CORPORATE SEAL] |
OZONA ONLINE NETWORK, INC., a North Carolina corporation
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By:
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/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
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Title: Chief Financial Officer
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| [CORPORATE SEAL] |
KOWABUNGA MARKETING, INC., a Michigan corporation
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By:
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/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
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Title: Chief Financial Officer
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| [CORPORATE SEAL] | PRIMARYADS, INC., A New Jersey corporation | ||
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By:
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/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
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Title: Chief Financial Officer
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| [CORPORATE SEAL] |
REAL ESTATE SCHOOL ONLINE INC., a Florida corporation
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By:
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/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
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Title: Chief Financial Officer
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| [CORPORATE SEAL] |
VINTACOM FLORIDA, INC., a Florida corporation
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By:
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/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
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Title: Chief Financial Officer
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| [CORPORATE SEAL] |
MOREX MARKETING GROUP, LLC, a New York limited liability company
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By:
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/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
| Title: Chief Financial Officer | |||
| [CORPORATE SEAL] |
LITMUS MEDIA, INC., a Missouri corporation
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By:
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/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
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Title: Chief Financial Officer
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| [CORPORATE SEAL] |
ILEAD MEDIA LLC, a Delaware limited liability company
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By:
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/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
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Title: Chief Financial Officer
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| [CORPORATE SEAL] |
VALIDCLICK, INC., a Missouri corporation
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By:
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/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
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Title: Chief Financial Officer
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| [CORPORATE SEAL] |
SECOND BITE LLC, a Kansas limited liability company
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By:
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/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
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Title: Chief Financial Officer
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| [CORPORATE SEAL] |
EXACT SUPPLEMENTS LLC, a Florida limited liability company
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By:
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/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
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Title: Chief Financial Officer
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XXXXX FARGO BANK, NA.
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By:
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/s/ Xxxxx X. Xxxxx | |
| Name: Xxxxx X. Xxxxx | |||
| Title: Senior Vice President | |||
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