1
Exhibit 10(f)
LOAN AGREEMENT
▇▇▇▇▇▇▇ Company Date: March 25, 1998
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
We are pleased to make available to you an uncommitted credit
facility for general corporate purposes on the terms set forth in this letter.
1. We agree to consider from time to time, in our sole discretion, your
requests that we make Advances (as hereinafter defined) to you, on a
discount basis in an aggregate Stated Amount (as hereinafter defined)
not to exceed at any one time outstanding the amount set forth on
Schedule I hereto as the "Facility Amount," on the terms and conditions
set forth below. This letter is not a commitment to lend but rather
sets forth the procedures to be used in connection with your requests
for our making of Advances to you from time to time on or prior to the
termination hereof pursuant to Paragraph 11 hereof and, in the event
that we make Advances to you hereunder, your obligations to us with
respect thereto. The Advances shall be evidenced by the "grid"
promissory note executed by you in an amount equal to the amount set
forth on Schedule I hereto as the "Facility Amount", such promissory
note to be in substantially the form of the promissory note attached
hereto (the "Note").
2. As used herein, the following terms shall have the following meanings
(terms defined in the singular to have the corresponding meanings when
used in the plural, and vice versa):
"Advance" means any advance that we shall make to you hereunder
pursuant to your request as provided herein. Unless otherwise
required by the context, any reference herein or in the Note to
the account of an Advance shall be construed to refer to the
Discounted Proceeds thereof actually remitted to you or to your
account as proved herein.
"Discounted Amount" of any Advance means the amount by which the
Stated Amount of such Advance exceeds the Discounted Proceeds of
such Advance.
"Discounted Proceeds" of any Advance means the net proceeds of
such Advance transferred or wired to you or to your account in
accordance with the last sentence of Paragraph 3 hereof.
"Stated Amount" of any Advance means the full stated or face
amount of such Advance, which in all circumstances shall be equal
to the sum of (x) the Discounted Proceeds of such Advance plus (y)
the Discount Amount of such Advance.
3. The Stated Amount of each Advance shall be equal to the amount set
forth on Schedule I hereto as the "Minimum Stated Amount" or any
integral multiple of $1,000 in excess thereof. Each Advance shall be
made upon (a) your request to us by telephone, telecopy or letter,
given by any of the persons listed on Exhibit A hereto or otherwise
designated by you in writing ("Designated Persons") that you wish to
borrow money on a specified date, in a specific amount and for a
specified term (which shall, in no event, be longer than the number of
days set forth on Schedule I hereto as the "Maximum Term"), and (b) our
mutual agreement as to such date and as to the term, the Discount
Amount and Stated Amount applicable to any such Advance. On the date of
any such Advance, we will make such Advance available to you in same
day funds by directing our administrative agent to transfer or wire the
net proceeds of such Advance to the account designated by you in item
(C) of Schedule I attached hereto or to such other account as may be
designated from time to time by a Designated Person pursuant to written
notice to us.
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4. Our agreement and acceptance of this letter, together with your
furnishing us certified copies of resolutions of your board of
directors authorizing Designated Person(s) to execute this letter and
any documents delivered pursuant hereto and to request Advances,
together with specimen signatures of such Designated Persons, shall
constitute a representation and warranty by you that (a) the execution,
delivery and performance of this letter has been duly authorized by
all necessary corporate action and does not contravene any law, or any
contractual or legal restriction, applicable to you and (b) no
authorization or approval or other action by, and no notice to or
filing with, any government authority or regulatory body is required
for such execution, delivery and performance or for the making of any
Advance.
5. Each request by you for an Advance shall constitute a representation
and warranty by you, as of the making of such Advance and giving effect
to the application of the proceeds therefrom, that (a) no payment
default has occurred and is continuing under any agreement or
instrument relating to any of your indebtedness, (b) such Advance when
made will constitute your legal, valid and binding obligation, (c) such
Advance is being incurred, and will be repaid at maturity in its full
Stated Amount, in the ordinary course of your business out of the cash
flow generated in the normal day-to-day conduct and operations of your
business (to include refinancings), and (d) no event has occurred and
no circumstance exists as a result of which the information which you
have provided to us in connection herewith would include an untrue
statement of a material fact or omit to state any material fact or any
fact necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading. In no
event shall an Advance be made if any of your representations in
Paragraph 4 hereof or in this Paragraph 5 shall fail to be true and
correct in all respects on the date of such Advance.
6. You shall repay the full Stated Amount of each Advance in accordance
with the terms hereof and of the Note. You shall have no right to
prepay all or any portion of any Advance or the Stated Amount thereof
prior to its stated maturity.
7. You shall make each payment hereunder and under the Notes on or before
12:00 noon (New York City time) on the day when due in lawful money of
the United States of America to our account, The Centric Capital
Corporation Commercial Paper Account at The First National Bank of
Chicago, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ in same day
funds. All computations of interest shall be made on the basis of a
year of 360 days, for the actual number of days (including the first
day but excluding the last day) elapsed.
8. Whenever any payment to be made hereunder shall be otherwise due on a
Saturday, a Sunday or other day of the year on which banks are required
or authorized to close in New York City, New York, Winston Salem, North
Carolina or Chicago, Illinois (any other day being a "Business Day"),
such payment shall be made on the next succeeding Business Day.
9. You agree that you will not apply the proceeds of any Advance to
purchase or carry margin stock within the meaning of Regulation G
issued by the Board of Governors of the Federal Reserve System.
10. We shall incur no liability to you in acting upon any telephone,
telecopy, telex or letter request or communication which we believe in
good faith to have been given by a Designated Person or in otherwise
acting in good faith under this letter. Further, all documents required
to be executed in conjunction with Advances under this letter may be
signed by any Designated Person.
11. This letter shall remain in effect until terminated by either you or us
by giving prior written notice of termination hereof to the other party
hereto, but no such termination shall affect your obligations with
respect to the Advances hereunder outstanding at the time of such
termination.
12. All communications hereunder shall be in writing (other than the
communication provided for in the second sentence of Paragraph 15
hereof) and mailed, telecopied or delivered to the address specified on
Schedule I hereto for you and for us, or as to each party, to such
other address as may be designated by such party in a written notice to
the other party. Written communication shall be effective upon receipt
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unless such communication is mailed in which case it shall be effective
three Business Days after deposit in first class mail.
13. We may assign to one or more banks or other entities all or any part
of, or may grant participations to one or more banks or other entities
in or to all or any part of, any Advance or Advances hereunder and
under the Note. You may not assign your rights or obligations hereunder
or any interest herein.
14. You agree to pay on demand all costs, expenses, including, but not
limited to, legal fees and losses, if any, incurred by us in connection
with the enforcement of this letter or the Note.
15. You agree to furnish us with such financial statements or other
information as we may reasonably request. You shall immediately notify
us of any change in the short term or long term ratings assigned by any
statistical rating organization to any of your outstanding
indebtedness.
16. If any of the following events shall occur and be continuing:
(a) you shall fail to pay any amount due hereunder or under the Note
when the same becomes due and payable; or
(b) any representation or warranty made by you (or any of your
officers) in connection with any Advance or otherwise in connection
with the Note shall prove to have been incorrect in any material
respect when made; or
(c) you shall, without our prior written consent, merge or consolidate
with or into any entity under circumstances in which you are not in
control of the surviving entity or convey, transfer, lease or dispose
of (whether in one transaction or in a series of transactions) all or
substantially all of your assets to, any person or entity; or
(d) you shall fail to perform or observe any other material term,
covenant or agreement in connection with any Advance or otherwise in
connection with the Note on your part to be performed or observed; or
(e) you shall fail to pay any principal of or premium or interest on
any indebtedness, which we deem to be material (excluding indebtedness
evidenced by the Note), when the same becomes due and payable (whether
by scheduled maturity, required prepayments, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to
such indebtedness; or any other event shall occur or condition shall
exist under any agreement or instrument relating to such indebtedness
and shall continue after the applicable grace period, if any, specified
in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the
maturity of such indebtedness; or any such indebtedness shall be
declared to be due and payable, or required to be prepaid (other than
by a regularly scheduled required prepayment), prior to the stated
maturity thereof; or
(f) you shall generally not pay your debts as such debts become due, or
shall admit in writing your inability to pay your debts generally, or
shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against you seeking to adjudicate
you as bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of you or your debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for you or any substantial part of
your property; or you shall take any corporate action to authorize any
of the actions set forth above in this subparagraph (f);
then, and in any such event, we may declare the Note and all amounts
payable thereunder to be forthwith due and payable, whereupon the Note
and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest, or further notice of any kind all
of which you hereby expressly waive; provided however, that in the
event of an actual or deemed entry of an order for relief
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with respect to you under the Federal Bankruptcy Code, the Note and all
such other amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by you.
17. THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF GEORGIA.
18. You agree that you will not institute against or join any other
person in instituting against us any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or other proceeding
under any federal or state bankruptcy or similar law, for one year and
a day after the latest maturing commercial paper note issued by us is
paid in full.
19. At our option, we may, upon notice that either Standard & Poor's
Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or
▇▇▇▇▇'▇ Investors Service, Inc. has (i) lowered or downgraded its
short term commercial paper or corporate bond or other short term
ratings of you, or (ii) placed your securities on a watch list of
securities singled out for surveillance, with either negative or
developing implications in a Rating Category, amend Schedule I hereof
to provide for an amended "Facility Amount" and amended "Maximum Term."
20. As long as you shall have any Advances outstanding, you agree that
you will maintain a separate line of credit with a commercial bank, in
an unutilized aggregate amount equal to the aggregate Stated Amount of
all such outstanding Advances.
21. The obligations under this Agreement are solely our corporate
obligations. No recourse shall be had for the payment of any amount
owing by us hereunder or any other obligation or claim of or against us
arising out of or based upon this Agreement against any of our
stockholders, employees, officers, directors or incorporators.
22. You irrevocably agree that any legal action, suit or proceeding
against us arising out of this Agreement may be brought in the United
States District Court for the Northern District of Georgia, or in the
courts of the State of Georgia and hereby irrevocably accept and submit
to the non-exclusive jurisdiction of each of the aforesaid courts in
personam, generally and unconditionally with respect to any action,
suit or proceeding for you and in respect of your properties, assets
and revenues. You further irrevocably agree to the service of any legal
process, summons, notices and documents out of any of the aforesaid
courts by mailing copies thereof by registered or certified air mail,
postage prepaid, to you at your address designated pursuant to this
Agreement. Nothing herein shall in any way be deemed to limit our
ability to serve any such legal process, summons, notices and documents
in any other manner, as may be permitted by applicable law or to obtain
jurisdiction over you, or bring action, suits or proceedings against
you in such other jurisdictions, and in such manner, as may be
permitted by applicable law.
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If the terms of this letter are satisfactory to you, please indicate your
agreement and acceptance thereof by signing a counterpart of this letter and
returning it to us.
Very truly yours,
CENTRIC CAPITAL CORPORATION
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
Wachovia Bank, N.A.
Agreed and Accepted:
▇▇▇▇▇▇▇ COMPANY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name & Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Treasurer
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EXHIBIT A
to
the Loan Agreement
For the purpose of Paragraph 3 of this Loan Agreement, the "Designated
Persons" are:
Name TITLE
---- -----
▇▇▇▇▇ ▇. ▇▇▇▇▇ Executive Vice President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Treasurer
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Executive Vice President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Treasury Assistant
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GRID
----
Date of Stated Maturity of Rate of Discounted Discounted Date Payment
Advance Amount Advance Discount Proceeds Amount Received
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8
PROMISSORY NOTE
DATE: March 25, 1998 $ 25,000,000
FOR VALUE RECEIVED, the undersigned (hereinafter called the "Borrower"), HEREBY
PROMISES TO PAY to the order of Centric Capital Corporation (hereinafter called
the "Lender") the entire Stated Amount (as such term is defined in the Loan
Agreement hereinafter referred to) of each Advance (as defined below) on the
date mutually agreed to by the Lender and the Borrower at the time of such
Advance as the maturity date thereof. Any overdue amount hereunder and any
overdue amount of fees or other amounts payable under the Loan Agreement
referred to below shall bear interest, payable on demand, at a fluctuating
interest rate per annum equal to the Prime Rate plus 2%. As used herein, "Prime
Rate" shall mean the prime rate of U.S. money center commercial banks as
published in the Wall Street Journal. Changes in the Prime Rate shall be
effective as of the day of each such change.
The Borrower shall have no right to prepay all or any portion of any
Advance or the Stated Amount thereof.
The Borrower shall make each payment of principal and interest hereunder
prior to 12:00 noon (New York City time) on the day when due in lawful money of
the United States of America to the Lender's account, The Centric Capital
Corporation Commercial Paper Account, at The First National Bank of Chicago,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ in same day funds.
Whenever any payment to be made hereunder shall be otherwise due on a day other
than a Business Day (as defined in the Loan Agreement) such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest.
The Borrower hereby authorizes the Lender to endorse on the grid attached
hereto the date and Stated Amount of each Advance made by the Lender to the
Borrower hereunder, the maturity date thereof, the rate of discount applicable
thereto, the Discounted Proceeds and the Discount Amount (as such terms are
defined in the Loan Agreement referred to below) thereof, and all payments made
on account thereof, provided that the failure to do so shall not affect the
obligation of the Borrower to the lender.
The Borrower also agrees to pay on demand all costs and expenses
(including fees and expenses of counsel) incurred by the Lender in enforcing
this Promissory Note.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF GEORGIA.
This Promissory Note is the "grid" promissory note referred to in, and is
entitled to the benefits of, the Loan Agreement dated March 25, 1998 (the "Loan
Agreement"), between the Borrower and the Lender, which Loan Agreement, among
other things, sets forth procedures to be used in connection with the
Borrower's periodic requests that the Lender make advances on a discounted
basis (the "Advances") to the Borrower from time to time in an aggregate Stated
Amount not to exceed at any time outstanding the amount first above mentioned.
IN WITNESS WHEREOF, the Borrower has signed this Note by its undersigned
officer duly authorized to do so, the day and year first above written.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name & Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Treasurer
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AMENDED SCHEDULE I
Dated March 25, 1998
to
Loan Agreement dated as of March 25, 1998
between Centric Capital Corporation and ▇▇▇▇▇▇▇ Company
(i) For the purposes of Section 1 and 2 of this Loan Agreement:
The "Facility Amount" is $25,000,000
The "Minimum Advance Amount" is $5,000,000
The "Maximum Term" is 90 days.
(ii) For the purpose of Section 11 of this Loan Agreement:
The address for written communications to you is:
Perrigo Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
The address for written communications to us is:
Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Mail Code: GA-370
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
(iii) For the purposes of this Loan Agreement, instructions for wire transfer
of funds to you are:
Name of Bank: Old Kent Bank & Trust
Bank ABA Number: ▇▇▇▇▇▇▇▇▇
Account Name: ▇▇▇▇▇▇▇ Company, Acct # 2311027
Reference, if any: ▇▇▇▇▇▇▇ Company
BORROWER ACKNOWLEDGEMENT: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Treasurer
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(Print Name and Title)
10
WACHOVIA
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ACCEPTANCE CREDIT AGREEMENT
From time to time, we (or persons designated in writing by us to you) shall either (i) deliver, or cause to be delivered to you,
drafts, or (ii) by telephone authorize you to complete or cause to be completed pre-signed drafts previously delivered to you, or
(iii) by telephone authorize you to complete or cause to be completed drafts which shall be executed by you on our behalf and as
our agent, drawn on you by us at a maximum maturity of six (6) months (each draft for acceptance by you pursuant to the provisions
of this agreement being herein called a "Draft"), for your acceptance at your option.
We hereby request you to accept and discount each Draft in your discretion in each instance and in consideration of your doing so,
we hereby agree as follows:
1. We shall pay to you in United States currency in immediately available funds at your accepting office, or such other office as
you may designate, the face amount of each Draft no later than the maturity date of such Draft. In addition, in the event we
fail to pay the face amount of a Draft at maturity, we shall pay to you, on demand: (a) interest on the face amount of such
Draft from maturity until payment by us of such face amount at a rate per annum equal to 2% above the rate applicable prior to
the due date, not to exceed the maximum rate permitted by applicable law, and (b) all liabilities, charges, and reasonable
expenses (including reasonable attorneys' fees and legal expenses) paid or incurred by you in connection with such Draft or this
agreement or the enforcement of either of them.
2. Rates for discounting each Draft will be determined and offered by you in your sole discretion. All discount and interest
charges pursuant to this agreement shall be based on a year consisting of 360 days and shall be computed for the actual number
of days until maturity for discount charges or actual number of days elapsed in all other cases.
3. Promptly following each acceptance by you of each Draft hereunder, we agree to confirm to you in writing or by telephone (a)
the face amount of the Draft; (b) the value date; (c) the maturity date; and (d) the payment instructions for any discounted
proceeds. Furthermore, we shall furnish you such other information as you may from time to time require concerning a Draft and
the transaction(s) to which such Draft relates.
4. We agree that in the event of any extension of the maturity or time from presentation of Drafts, acceptances, or documents, or
any other modification of the terms of any transaction hereunder at our request, this agreement shall be binding upon us with
regard to any transactions hereunder so modified, to Drafts, documents and property covered thereby and to any action taken by
you in accordance with such extension or other such modification.
5. In the event of the happening of any one or more of the following events: (a) our non-payment of any of the above described
indebtedness when due; (b) our default in or nonperformance of any financial obligation in an aggregate amount of more than
$20,000,000 (or its equivalence in another currency), causing an acceleration of the maturity of such obligation; (c) our
failure to perform or observe any other covenant or agreement with you, or if any representation or warranty made by us in this
agreement shall prove to have been untrue when made; or (d) if we or any of our property shall become subject to order of any
court or any other legal process or restraint or to any adverse legal claim that you shall deem material, then any and all of
your court or any other legal process or restraint or to any adverse legal claim that you shall deem material, then any and all
of your obligations to extend further credit to us under this agreement or any Draft shall terminate and all indebtedness
hereunder shall, at your option, immediately mature and become payable without presentment, demand, protest, or notice of any
kind, which are hereby expressly waived, and you may, at your sole discretion and without notice to us, exercise any and all
rights and remedies available to you hereunder or under applicable law.
6. This agreement shall be binding upon us, our heirs, executors, administrators, successors, and assigns and shall inure to the
benefit of, and be enforceable by, you, your successors, transferees, and assigns. We shall not, however, transfer or assign any
rights or duties under this agreement without your prior written consent. If this agreement should be terminated or revoked by
operation of law as to us or any of us, we will indemnify and save you harmless from any loss which may be suffered or incurred
by you in acting hereunder prior to the receipt by you, or your transferees or assigns, of notice in writing of such termination
or revocation.
7. This agreement may not be amended or modified except in writing signed by the parties hereto. This agreement shall continue in
effect until such date as may be specified in a written notice from either party to this agreement of discontinuance hereof;
provided, however, that the date so specified by us shall be at least thirty (30) days after your receipt of such notice; and
provided further that notwithstanding any discontinuance or termination of this agreement, this agreement shall continue to
apply to any Drafts accepted by you prior to the effective date of such discontinuance or termination and to all other
obligations of us to you existing at such date.
8. If this agreement is signed by two or more parties, it shall be the joint and several agreement of such parties and whenever
used herein, the singular numbers shall include the plural, and the plural the singular. This agreement shall be governed by and
construed in accordance with the laws of the State of Georgia where "you" refers to Wachovia Bank, N.A.
IN WITNESS WHEREOF, We have executed this agreement under seal this date March 25, 1998.
Attest ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Perrigo Company
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Title Secretary By [SIG]
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Title Treasurer
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[Corporate Seal]