Comerica Guaranty
The undersigned, for value received, unconditionally and absolutely guarantee(s)
to Comerica Bank ("Bank"), a Michigan banking corporation of 000 Xxxxxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 and to the Bank's successors and assigns,
payment when due, whether by stated maturity, demand, acceleration or otherwise,
of all existing and future indebtedness to the Bank of Xxxx Industries, Inc.
whose address is 0000 Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 and also of any
successor in interest, including without limit any debtor-in-possession or
trustee in bankruptcy which succeeds to the interests of this party or person
(jointly and severally the "Borrower"), however this indebtedness has been or
may be incurred or evidenced, whether absolute or contingent, direct or
indirect, voluntary or involuntary, liquidated or unliquidated, joint or
several, and whether or not known to the undersigned at the time of this
Guaranty or at the time any future indebtedness is incurred (the
"Indebtedness").
The Indebtedness guaranteed includes without limit: (a) any and all direct
indebtedness of the Borrower to the Bank, including indebtedness evidenced by
any and all promissory notes; (b) any and all obligations or liabilities of the
Borrower to the Bank arising under any guaranty where the Borrower has
guaranteed the payment of indebtedness owing to the Bank from a third party; (c)
any and all obligations or liabilities of the Borrower to the Bank arising from
applications or agreements for the issuance of letters of credit; (d) any and
all obligations or liabilities of the Borrower to the Bank arising out of any
other agreement by the Borrower, including without limit any agreement to
indemnify the Bank for environmental liability or to clean up hazardous waste;
(e) any and all indebtedness, obligations or liabilities for which the Borrower
would otherwise be liable to the Bank were it not for the invalidity,
irregularity or unenforceability of them by reason of any bankruptcy, insolvency
or other law or order of any kind, or for any other reason, including without
limit liability for interest and attorney fees on, or in connection with, any of
the Indebtedness from and after the filing by or against the Borrower of a
bankruptcy petition; (f) any and all amendments, modifications, renewals and/or
extensions of any of the above, including without limit amendments,
modifications, renewals and/or extensions which are evidenced by new or
additional instruments, documents or agreements; and (g) all costs of collecting
Indebtedness, including without limit reasonable attorney fees.
The undersigned waive(s) notice of acceptance of this Guaranty and presentment,
demand, protest, notice of protest, dishonor, notice of dishonor, notice of
default, notice of intent to accelerate or demand payment of any Indebtedness,
and diligence in collecting any Indebtedness, and agree(s) that the Bank may
modify the terms of any Indebtedness, compromise, extend, increase, accelerate,
renew or forbear to enforce payment of any or all Indebtedness, or permit the
Borrower to incur additional Indebtedness, all without notice to the undersigned
and without affecting in any manner the unconditional obligation of the
undersigned under this Guaranty. The undersigned further waive(s) any and all
other notices to which the undersigned might otherwise be entitled. The
undersigned acknowledge(s) and agree(s) that the liabilities created by this
Guaranty are direct and are not conditioned upon pursuit by the Bank of any
remedy the Bank may have against the Borrower or any other person or any
security. No invalidity, irregularity or unenforceability of any part or all of
the Indebtedness or any documents evidencing the same, by reason of any
bankruptcy, insolvency or other law or order of any kind or for any other
reason, and no defense or setoff available at any time to the Borrower, shall
impair, affect or be a defense or setoff to the obligations of the undersigned
under this Guaranty.
The undersigned deliver(s) this Guaranty based solely on the undersigned's
independent investigation of the financial condition of the Borrower and is
(are) not relying on any information furnished by the Bank. The undersigned
assume(s) full responsibility for obtaining any further information concerning
the Borrower's financial condition, the status of the Indebtedness or any other
matter which the undersigned may deem necessary or appropriate from time to
time. The undersigned waive(s) any duty on the part of the Bank, and agree(s)
that it is not relying upon nor expecting the Bank to disclose to the
undersigned any fact now or later known by the Bank, whether relating to the
operations or condition of the Borrower the existence, liabilities or financial
condition of any co-guarantor of the Indebtedness, the occurrence of any default
with respect to the Indebtedness, or otherwise, notwithstanding any effect these
facts may have upon the undersigned's risk under this Guaranty or the
undersigned's rights against the Borrower. The undersigned knowingly accept(s)
the full range of risk encompassed in this Guaranty, which risk includes without
limit the possibility that the Borrower may incur Indebtedness to the Bank after
the financial condition of the Borrower, or its ability to pay its debts as they
mature, has deteriorated.
The undersigned represent(s) and warrant(s) that: (a) the Bank has made no
representation to the undersigned as to the creditworthiness of the Borrower;
and (b) the undersigned has (have) established adequate means of obtaining from
the Borrower on a continuing basis financial and other information pertaining to
the Borrower's financial condition. The undersigned agree(s) to keep adequately
informed of any facts, events or circumstances which might in any way affect the
risks of the undersigned under this Guaranty.
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The undersigned grant(s) to the Bank a security interest in and the right of
setoff as to any and all property of the undersigned now or later in the
possession of the Bank. The undersigned subordinate(s) any claim of any nature
that the undersigned now or later has (have) against the Borrower to and in
favor of all Indebtedness and agree(s) not to accept payment or satisfaction of
any claim that the undersigned now or later may have against the Borrower
without the prior written consent of the Bank. Should any payment, distribution,
security, or proceeds, be received by the undersigned upon or with respect to
any claim that the undersigned now or may later have against the Borrower, the
undersigned shall immediately deliver the same to the Bank in the form received
(except for endorsement or assignment by the undersigned where required by the
Bank) for application on the Indebtedness, whether matured or unmatured, and
until delivered the same shall be held in trust by the undersigned as the
property of the Bank. The undersigned further assign(s) to the Bank as
collateral for the obligations of the undersigned under this Guaranty all claims
of any nature that the undersigned now or later has (have) against the Borrower
with full right on the part of the Bank, in its own name or in the name of the
undersigned to collect and enforce these claims.
The undersigned agree(s) that no security now or later held by the Bank for the
payment of any Indebtedness, whether from the Borrower, any guarantor, or
otherwise, and whether in the nature of a security interest, pledge, lien,
assignment, setoff, suretyship, guaranty, indemnity, insurance or otherwise,
shall affect in any manner the unconditional obligation of the undersigned under
this Guaranty, and the Bank, in its sole discretion, without notice to the
undersigned, may release, exchange, enforce and otherwise deal with any security
without affecting in any manner the unconditional obligation of the undersigned
under this Guaranty. The undersigned acknowledge(s) and agree(s) that the Bank
has no obligation to acquire or perfect any lien on or security interest in any
asset(s), whether realty or personalty, to secure payment of the Indebtedness,
and the undersigned is (are) not relying upon any asset(s) in which the Bank has
or may have a lien or security interest for payment of the Indebtedness.
The undersigned acknowledge(s) that the effectiveness of this Guaranty is not
conditioned on any or all of the Indebtedness being guaranteed by anyone else.
Until the Indebtedness is irrevocably paid in full, the undersigned waive(s) any
and all rights to be subrogated to the position of the Bank or to have the
benefit of any lien, security interest or other guaranty now or later held by
the Bank for the Indebtedness or to enforce any remedy which the Bank now or
later has against the Borrower or any other person. Until the Indebtedness is
irrevocably paid in full, the undersigned shall
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have no right of reimbursement, indemnity, contribution or other right of
recourse to or with respect to the Borrower or any other person. The undersigned
agree(s) to indemnify and hold harmless the Bank from and against any and all
claims, actions, damages, costs and expenses, including without limit reasonable
attorneys' fees, incurred by the Bank in connection with the undersigned's
exercise of any right of subrogation, contribution, indemnification or recourse
with respect to this Guaranty. The Bank has no duty to enforce or protect any
rights which the undersigned may have against the Borrower or any other person
and the undersigned assume(s) full responsibility for enforcing and protecting
these rights.
Notwithstanding any provision of the preceding paragraph or anything else in
this Guaranty to the contrary, if any of the undersigned is or becomes an
"insider" or "affiliate" (as defined in Section 101 of the Federal Bankruptcy
Code, as it may be amended) with respect to the Borrower, then that undersigned
irrevocably and absolutely waives any and all rights of subrogation,
contribution, indemnification, recourse, reimbursement and any similar rights
against the Borrower (or any other guarantor) with respect to this Guaranty,
whether such rights arise under an express or implied contract or by operation
of law. It is the intention of the parties that the undersigned shall not be
(or be deemed to be) a "creditor" (as defined in Section 101 of the Federal
Bankruptcy Code, as it may be amended) of the Borrower (or any other guarantor)
by reason of the existence of this Guaranty in the event that the Borrower
becomes a debtor in any proceeding under the Federal Bankruptcy Code. This
waiver is given to induce the Bank to enter into certain written contracts with
the Borrower included in the Indebtedness. The undersigned warrant(s) and
agree(s) that none of the Bank's rights, remedies or interests shall be directly
or indirectly impaired because of any of the undersigned's status as an
"insider" or "affiliate" of the Borrower, and the undersigned shall take any
action, and shall execute any document, which the Bank may request in order to
effectuate this warranty to the Bank.
If any Indebtedness is guaranteed by two or more guarantors, the obligation of
the undersigned shall be several and also joint, each with all and also each
with any one or more of the others, and may be enforced at the option of the
Bank against each severally, any two or more jointly, or some severally and some
jointly. The Bank, in its sole discretion, may release any one or more of the
guarantors for any consideration which it deems adequate, and may fail or elect
not to prove a claim against the estate of any bankrupt, insolvent, incompetent
or deceased guarantor; and after that, without notice to any other guarantor,
the Bank may extend or renew any or all Indebtedness and may permit the Borrower
to incur additional Indebtedness, without affecting in any manner the
unconditional obligation of the
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remaining guarantor(s). This action by the Bank shall not, however, be deemed to
affect any right to contribution which may exist among the guarantors.
Any of the undersigned may terminate their obligation under this Guaranty as to
future Indebtedness (except as provided below) by (and only by) delivering
written notice of termination to an officer of the Bank and receiving from an
officer of the Bank written acknowledgement of delivery; provided, the
termination shall not be effective until the opening of business on the forty-
fifth (45th) day following written acknowledgement of delivery. Any termination
shall not affect in any way the unconditional obligations of the remaining
guarantor(s), whether or not the termination is known to the remaining
guarantor(s). Any termination shall not affect in any way the unconditional
obligations of the terminating guarantor(s) as to any Indebtedness existing at
the effective date of termination or any Indebtedness created after that
pursuant to any commitment or agreement of the Bank or any Borrower loan with
the Bank existing at the effective date of termination (whether advances or
readvances by the Bank are optional or obligatory), or any modifications,
extensions or renewals of any of this Indebtedness, whether in whole or in part,
and as to all of this Indebtedness and modifications, extensions or renewals of
it, this Guaranty shall continue effective until the same shall have been fully
paid. The Bank has no duty to give notice of termination by any guarantor(s) to
any remaining guarantor(s). The undersigned shall indemnify the Bank against all
claims, damages, costs and expenses, including without limit reasonable attorney
fees, incurred by the Bank in connection with any suit, claim or action against
the Bank arising out of any modification or termination of a Borrower loan or
any refusal by the Bank to extend additional credit in connection with the
termination of this Guaranty.
Notwithstanding any prior revocation, termination, surrender or discharge of
this Guaranty (or of any lien, pledge or security interest securing this
Guaranty) in whole or part, the effectiveness of this Guaranty, and of all
liens, pledges and security interests securing this Guaranty, shall
automatically continue or be reinstated, as the case may be, in the event that
(a) any payment received or credit given by the Bank in respect of the
Indebtedness is returned, disgorged or rescinded as a preference, impermissible
setoff, fraudulent conveyance, diversion of trust funds, or otherwise under any
applicable state or federal law, including, without limitation, laws pertaining
to bankruptcy or insolvency, in which case this Guaranty, and all liens, pledges
and security interests securing this Guaranty, shall be enforceable against the
undersigned as if the returned, disgorged or rescinded payment or credit had not
been received or given by the Bank, and whether or not the Bank relied upon this
payment or credit or changed its position as a consequence of it;
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or (b) any liability is imposed, or sought to be imposed, against the Bank
relating to the environmental condition of, or the presence of hazardous or
toxic substances on, in or about, any property given as collateral to the Bank
by the Borrower, whether this condition is known or unknown, now exists or
subsequently arises (excluding only conditions which arise after any acquisition
by the Bank of any such property, by foreclosure, in lieu of foreclosure or
otherwise, to the extent due to the wrongful act or omission of the Bank), in
which case this Guaranty, and all liens, pledges and security interests securing
this Guaranty, shall be enforceable against the undersigned to the extent of all
liability, costs and expenses (including without limit reasonable attorneys'
fees) incurred by the Bank as the direct or indirect result of any environmental
condition or hazardous or toxic substances. In the event of continuation or
reinstatement of this Guaranty and the liens, pledges and security interests
securing it, the undersigned agree(s) upon demand by the Bank to execute and
deliver to the Bank those documents which the Bank determines are appropriate to
further evidence (in the public records or otherwise) this continuation or
reinstatement, although the failure of the undersigned to do so shall not affect
in any way the reinstatement or continuation. If the undersigned do(es) not
execute and deliver to the Bank upon demand such documents, the Bank and each
Bank officer is irrevocably appointed (which appointment is coupled with an
interest) the true and lawful attorney of the undersigned (with full power of
substitution) to execute and deliver such documents in the name and on behalf of
the undersigned. For purposes of this Guaranty, "environmental condition"
includes, without limitation, conditions existing with respect to the surface or
groundwater, drinking water supply, land surface or subsurface and the air; and
"hazardous or toxic substances" shall include any and all substances now or
subsequently determined by any federal, state or local authority to be hazardous
or toxic, or otherwise regulated by any of these authorities.
Although the intent of the undersigned and the Bank is that Michigan law shall
apply to this Guaranty, regardless if Michigan law applies, the undersigned
further agree(s) as follows: With respect to the limitation, if any, stated in
the Additional Provisions below on the amount of principal guaranteed under this
Guaranty, the undersigned agree(s) that (a) this limitation shall not be a
limitation on the amount of Borrower's Indebtedness to the bank; (b) any
payments by the undersigned shall not reduce the maximum liability of the
undersigned under this Guaranty unless written notice to that effect is actually
received by the Bank at or prior to the time of the payment; and (c) the
liability of the undersigned to the Bank shall at all times be deemed to be the
aggregate liability of the undersigned under this Guaranty and any other
guaranties previously or subsequently given to the Bank by the undersigned and
not expressly revoked, modified or invalidated in writing.
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The undersigned waive(s) any right to require the Bank to: (a) proceed against
any person, including without limit the Borrower; (b) proceed against or exhaust
any security held from the Borrower or any other person; (c) give notice of the
terms, time and place of any public or private sale of personal property
security held from the Borrower or any other person, or otherwise comply with
the provisions of Section 9-504 of the Michigan or other applicable Uniform
Commercial Code; (d) pursue any other remedy in the Bank's power; or (e) make
any presentments or demands for performance, or give any notices of
nonperformance, protests, notices of protest, or notices of dishonor in
connection with any obligations or evidences of Indebtedness held by the Bank as
security, in connection with any other obligations or evidences of indebtedness
which constitute in whole or in part Indebtedness, or in connection with the
creation of new or additional Indebtedness.
The undersigned authorize(s) the Bank, either before or after termination of
this Guaranty, without notice to or demand on the undersigned and without
affecting the undersigned's liability under this Guaranty, from time to time to:
(a) apply any security and direct the order or manner of sale of it, including
without limit, a non-judicial sale permitted by the terms of the controlling
security agreement, mortgage or deed of trust, as the Bank in its discretion may
determine; (b) release or substitute any one or more of the endorsers or any
other guarantors of the Indebtedness; and (c) apply payments received by the
Bank from the Borrower to any indebtedness of the Borrower to the Bank, in such
order as the Bank shall determine in its sole discretion, whether or not this
indebtedness is covered by this Guaranty, and the undersigned waive(s) any
provision of law regarding application of payments which specifies otherwise.
The Bank may without notice assign this Guaranty in whole or in part. Upon the
Bank's request, the undersigned agree(s) to provide to the Bank copies of the
undersigned's financial statements.
The undersigned waive(s) any defense based upon or arising by reason of (a) any
disability or other defense of the Borrower or any other person; (b) the
cessation or limitation from any cause whatsoever, other than final and
irrevocable payment in full, of the Indebtedness; (c) any lack of authority of
any officer, director, partner, agent or any other person acting or purporting
to act on behalf of the Borrower which is a corporation, partnership or other
type of entity, or any defect in the formation of the Borrower; (d) the
application by the Borrower of the proceeds of any Indebtedness for purposes
other than the purposes represented by the Borrower to the Bank or intended or
understood by the Bank or the undersigned; (e) any act or omission by the Bank
which directly or indirectly results in or aids the discharge of the Borrower or
any Indebtedness by operation of law or otherwise; or (f) any modification of
the Indebtedness, in any form whatsoever including without limit any
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modification made after effective termination, and including without limit the
renewal, extension, acceleration or other change in time for payment of the
Indebtedness, or other change in the terms of any Indebtedness, including
without limit increase or decrease of the interest rate. The undersigned
waive(s) any defense the undersigned may have based upon any election of
remedies by the Bank which destroys the undersigned's subrogation rights or the
undersigned's right to proceed against the Borrower for reimbursement, including
without limit any loss of rights the undersigned may suffer by reason of any
rights, powers or remedies of the Borrower in connection with any anti-
deficiency, appraisement or valuation laws or any other laws limiting,
qualifying or discharging any Indebtedness.
The undersigned acknowledge(s) that the Bank has the right to sell, assign,
transfer, negotiate, or grant participations in all or any part of the
Indebtedness and any related obligations, including without limit this Guaranty.
In connection with that right, the Bank may disclose any documents and
information which the Bank now or later acquires relating to the undersigned and
this Guaranty, whether furnished by the Borrower, the undersigned or otherwise.
The undersigned further agree(s) that the Bank may disclose these documents and
information to the Borrower.
The total obligation under this Guaranty shall be UNLIMITED unless specifically
limited in the Additional Provisions of this Guaranty, and this obligation
(whether unlimited or limited to the extent indicated in the Additional
Provisions) shall include, IN ADDITION TO any limited amount of principal
guaranteed, any and all interest on all Indebtedness and any and all costs and
expenses of any kind, including without limit reasonable attorney fees, incurred
by the Bank at any time(s) for any reason in enforcing any of the duties and
obligations of the undersigned under this Guaranty or otherwise incurred by the
Bank in any way connected with this Guaranty, the Indebtedness or any other
guaranty of the Indebtedness (including without limit reasonable attorney fees
and other expenses incurred in any suit involving the conduct of the Bank, the
Borrower or the undersigned). All of these costs and expenses shall be payable
immediately by the undersigned when incurred by the Bank, without demand, and
until paid shall bear interest at the highest per annum rate applicable to any
of the Indebtedness, but not in excess of the maximum rate permitted by law. Any
reference in this Guaranty to attorney fees shall be deemed a reference to fees,
charges, costs and expenses of both in-house and outside counsel and paralegals,
whether or not a suit or action is instituted, and to court costs if a suit or
action is instituted, and whether attorney fees or court costs are incurred at
the trial court level, on appeal, in a bankruptcy, administrative or probate
proceeding or otherwise. Any reference in the Additional Provisions or elsewhere
(a) to this Guaranty being secured by certain collateral shall NOT be deemed to
limit the total obligation of the undersigned under
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this Guaranty or (b) to this Guaranty being limited in any respect shall NOT be
deemed to limit the total obligation of the undersigned under any prior or
subsequent guaranty given by the undersigned to the Bank.
The undersigned unconditionally and irrevocably waive(s) each and every defense
and setoff of any nature which, under principles of guaranty or otherwise, would
operate to impair or diminish in any way the obligation of the undersigned under
this Guaranty, and acknowledge(s) that each such waiver is by this reference
incorporated into each security agreement, collateral assignment, pledge and/or
other document from the undersigned now or later securing this Guaranty and/or
the Indebtedness, and acknowledge(s) that as of the date of this Guaranty no
such defense or setoff exists. The undersigned acknowledge(s) that the
effectiveness of this Guaranty is subject to no conditions of any kind.
This Guaranty shall remain effective with respect to successive transactions
which shall either continue the Indebtedness, increase or decrease it, or from
time to time create new Indebtedness after all or any prior Indebtedness has
been satisfied, until this Guaranty is terminated in the manner and to the
extent provided above.
The undersigned warrant(s) and agree(s) that each of the waivers set forth above
are made with the undersigned's full knowledge of their significance and
consequences, and that under the circumstances, the waivers are reasonable and
not contrary to public policy or law. If any of these waivers are determined to
be contrary to any applicable law or public policy, these waivers shall be
effective only to the extent permitted by law.
This Guaranty constitutes the entire agreement of the undersigned and the Bank
with respect to the subject matter of this Guaranty. No waiver, consent,
modification or change of the terms of this Guaranty shall bind any of the
undersigned or the Bank unless in writing and signed by the waiving party or an
authorized officer of the waiving party, and then this waiver, consent,
modification or change shall be effective only in the specific instance and for
the specific purpose given. This Guaranty shall inure to the benefit of the Bank
and its successors and assigns. This Guaranty shall be binding on the
undersigned and the undersigned's heirs, legal representatives, successors and
assigns including, without limit, any debtor in possession or trustee in
bankruptcy for any of the undersigned. The undersigned has (have) knowingly and
voluntarily entered into this Guaranty in good faith for the purpose of inducing
the Bank to extend credit or make other financial accommodations to the
Borrower, and the undersigned acknowledge(s) that the terms of this Guaranty are
reasonable. If any provision of this Guaranty is unenforceable in whole or in
part for any reason, the
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remaining provisions shall continue to be effective. THIS GUARANTY SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MICHIGAN.
Additional Provisions (if any):
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THE UNDERSIGNED AND BANK ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A
CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY
AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT WAIVES ANY RIGHT TO TRIAL BY JURY
IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN
ANY WAY RELATED TO, THIS GUARANTY OR THE INDEBTEDNESS.
IN WITNESS WHEREOF, the undersigned has (have) signed this Guaranty on
_____________, 19__.
GUARANTOR(S): Cenco Europe, Inc.
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TYPE/PRINT NAME OF ENTITY (IF
APPLICABLE)
WITNESSES:
/s/ Xxxx X. Xxxxxx By:/s/ Xxxxxx X. Xxxxxxxx
------------------ ------------------------
SIGNATURE OF SIGNATURE OF
Its: Vice President
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TITLE (IF APPLICABLE)
/s/ Xxxxx X. Xxxxxxxxxx By:
----------------------- ----------------------
SIGNATURE OF SIGNATURE OF
Its:
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TITLE (IF APPLICABLE)
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XXXXXXXXX'S ADDRESS:
2930 Xxxxxxx Xxxx
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STREET ADDRESS
Minneapolis MN 55418
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CITY STATE ZIP CODE
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