UNCONDITIONAL GUARANTY
OF PAYMENT AND PERFORMANCE
THIS UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE (this "Guaranty") is
made as of October 14, 2004, by XXXXX CORPORATION, an Indiana corporation
("Guarantor"), for the benefit of FIRST NATIONAL BANK OF OMAHA, a national
banking association ("Lender").
1. For valuable consideration, the receipt of which is hereby acknowledged,
Guarantor unconditionally, absolutely and irrevocably guarantees and promises to
pay to Lender, or order, any and all amounts, including, without limitation,
principal and interest, taxes, insurance premiums, impounds, reimbursements,
late charges, default interest, damages, indemnity obligations and all other
amounts, costs, fees, expenses and charges of any kind or type whatsoever, which
may or at any time be due to Lender pursuant to the following agreements
(collectively, the "Documents"):
A. Loan Agreement (the "Loan Agreement"), dated as of the date hereof,
between Lender and M-Tron Industries, Inc., a Delaware corporation and
Piezo Technology, Inc., a Florida corporation jointly and severally
(collectively the "Borrowers") pertaining to that certain loan (the "Loan")
secured by Borrowers' interest in certain land described therein and the
improvements to be constructed thereon (the "Premises");
B. Promissory Note, dated as of the date hereof, executed by Borrowers
and payable to Lender, in the amount of $2,000,000.00 evidencing the Term
Loan, (as defined in the Loan Agreement) between Borrowers and Lender (the
"Term Note");
C. Promissory Note, dated as of the date hereof, executed by Borrowers
and payable to Lender, in the amount of $3,000,000.00, evidencing the
Bridge Loan, (as defined in the Loan Agreement) between Borrowers and
Lender (the "Bridge Note");
D. Promissory Note, dated as of the date hereof, executed by Borrowers
and payable to Lender, in the amount of $5,500,000.00, evidencing the
Revolving Loan, (as defined in the Loan Agreement) between Borrowers and
Lender (the "Revolving Note")(the Term Note, Bridge Note and Revolving Note
are collectively referred to as the "Notes")
E. Mortgage, Assignment of Rents and Leases, Security Agreement and
Fixture Filing (the "Mortgage"), dated as of the date hereof, executed by
Borrowers for the benefit of Lender, providing a lien upon and security
interest in the Premises as security for the Notes;
F. Environmental Indemnity Agreement, dated as of the date hereof,
executed by Borrowers for the benefit of Lender;
G. Any other document, agreement, instrument or certificate
contemplated by any of the foregoing agreements entered into between Lender
and Borrowers with respect to the Loan, or any other documents, agreements,
instruments or certificates now or hereafter entered into between Lender
and Borrowers with respect to the Loan; and
H. Any amendment of the foregoing documents, agreements, instruments
or certificates now or hereafter entered into between Lender and Borrowers.
2. Guarantor also unconditionally guarantees the truthfulness and accuracy
of all representations, warranties and certifications of Borrowers, the
satisfaction of all conditions by Borrowers and the full and timely performance
of all obligations to be performed by Borrowers, under or pursuant to the
Documents (the matters which are guaranteed pursuant to Sections 1 and 2 are
hereinafter collectively referred to as the "Obligations"). This Guaranty shall
continue to be in full force and effect so long as any Obligation remains unpaid
between the Borrowers and the Lender. The obligations of Guarantor under this
Guaranty are primary, joint and several and independent of the obligations of
Borrowers and any and every other guarantor of the Obligations, and a separate
action or actions may be brought and executed against Guarantor or any other
such guarantor, whether or not such action is brought against Borrowers or any
other such guarantor and whether or not Borrowers or any other such guarantor be
joined in such action or actions.
3. This is an absolute and unconditional guaranty of payment and
performance and not of collection and Guarantor unconditionally (a) waives any
requirement that Lender first make demand upon, or seek to enforce or exhaust
remedies against, Borrowers or any other person or entity (including any other
guarantor) or any of the collateral or property of Borrowers or such other
person or entity before demanding payment from, or seeking to enforce this
Guaranty against, Guarantor; (b) waives and agrees not to assert any and all
rights, benefits and defenses which might otherwise be available under any
provisions of law, statute or rule (including any statutes or rules amending,
supplementing or supplanting same) which might operate, contrary to Guarantor's
agreements in this Guaranty, to limit Guarantor's liability under, or the
enforcement of, this Guaranty; (c) waives the benefits of any statutory
provision limiting the right of Lender to recover a deficiency judgement, or to
otherwise proceed, against any person or entity obligated for the payment of the
Obligations, after any foreclosure or trustee's sale of any collateral securing
payment of the Obligations, (d) subject to Section 2, covenants that this
Guaranty will not be discharged until all of the Obligations are fully
satisfied; and (e) agrees that this Guaranty shall remain in full effect without
regard to, and shall not be affected or impaired by, any invalidity,
irregularity or unenforceability in whole or in part of any of the Documents, or
any limitation of the liability of Borrowers or Guarantor thereunder, or any
limitation on the method or terms of payment thereunder which may now or
hereafter be caused or imposed in any manner whatsoever.
4. This Guaranty is a continuing guaranty, and the obligations,
undertakings and conditions to be performed or observed by Guarantor under this
Guaranty shall not be affected or impaired by reason of the happening from time
to time of the following with respect to the Documents, all without notice to,
or the further consent of, Guarantor: (a) the waiver by Lender of the observance
or performance by Borrowers or Guarantor of any of the obligations,
undertakings, conditions or other provisions contained in any of the Documents,
except to the extent of such waiver; (b) the extension, in whole or in part, of
the time for payment of any amount owing or payable under the Documents; (c) the
modification or amendment (whether material or otherwise) of any of the
obligations of Borrowers under, or any other provisions of, any of the
Documents, except to the extent of such modification or amendment; (d) the
taking or the omission of any of the actions referred to in any of the Documents
(including, without limitation, the giving of any consent referred to therein);
(e) any failure, omission, delay or lack on the part of Lender to enforce,
assert or exercise any provision of the Documents, including any right, power or
remedy conferred on Lender in any of the Documents or any action on the part of
Lender granting indulgence or extension in any form; (f) the assignment to or
assumption by any third party of any or all of the rights or obligations of
Borrowers under all or any of the Documents; (g) the release or discharge of
Borrowers from the performance or observance of any obligation, undertaking or
condition to be performed by Borrowers under any of the Documents by operation
of law, including any rejection or disaffirmance of any of the Documents in any
bankruptcy or similar proceedings; (h) the receipt and acceptance by Lender or
any other person or entity of notes, checks or other instruments for the payment
of money and extensions and renewals thereof; (i) any action, inaction or
election of remedies by Lender which results in any impairment or destruction of
any subrogation rights of Guarantor, or any rights of Guarantor to proceed
against any other person or entity for reimbursement; (j) any setoff, defense,
counterclaim, abatement, recoupment, reduction, change in law or any other event
or circumstance which might otherwise constitute a legal or equitable discharge
or defense of a guarantor, indemnitor or surety under the laws of the State of
Nebraska, the state in which the Premises is located or any other jurisdiction;
and (k) the termination or renewal of any of the Obligations or any other
provision thereof.
5. Guarantor represents and warrants to Lender that: (a) neither the
execution nor delivery of this Guaranty nor fulfillment of nor compliance with
the terms and provisions hereof will conflict with, or result in a breach of the
terms or conditions of, or constitute a default under, any agreement or
instrument to which Guarantor is now a party or by which Guarantor may be bound,
or result in the creation of any lien, charge or encumbrance upon any property
or assets of Guarantor, which conflict, breach, default, lien, charge or
encumbrance could result in a material adverse change in the financial condition
of Guarantor; (b) no further consents, approvals or authorizations are required
for the execution and delivery of this Guaranty by Guarantor or for Guarantor's
compliance with the terms and provisions of this Guaranty; (c) this Guaranty is
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the legal, valid and binding agreement of Guarantor and is enforceable against
Guarantor in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, liquidation, reorganization and
other laws affecting the rights of creditors generally and subject to general
principles of equity; (d) Guarantor has the full power, authority, capacity and
legal right to execute and deliver this Guaranty, and, to the extent Guarantor
is a corporation, partnership, limited liability company or other form of
entity, the parties executing this Guaranty on behalf of Guarantor are fully
authorized and directed to execute the same to bind Guarantor; (e) Guarantor is
not a "foreign individual," "foreign corporation," "foreign partnership,"
"foreign limited liability company", "foreign trust," or "foreign estate," as
those terms are defined in the U.S. Internal Revenue Code and the regulations
promulgated thereunder; Guarantor's Social Security Number or Federal Tax
Identification Number is accurately set forth herein next to the signature of
Guarantor; Guarantor has delivered to Lender either audited financial statements
or, if Guarantor does not have audited financial statements, certified financial
statements; such financial statements and other information relating to
Guarantor heretofore delivered to Lender are true, correct and complete in all
material respects as of the date of this Guaranty; Guarantor understands that
Lender is relying upon such information, and Guarantor represents that such
reliance is reasonable; and the financial statements of Guarantor delivered by
Borrowers to Lender pursuant to the Loan Agreement have been prepared in
accordance with generally accepted accounting principles consistently applied
and accurately reflect, as of the date of this Guaranty, the financial condition
of Guarantor; (f) during the term of this Guaranty, Guarantor will not transfer
or dispose of any material part of its assets except for full and fair
consideration and reasonably equivalent value; furthermore, at the request of
Lender, Guarantor will furnish Lender annually, within one hundred twenty (120)
days after the close of each calendar year, a financial statement consisting of
a balance sheet and such other financial information as Lender may reasonably
request; and (g) the Documents are conclusively presumed to have been signed in
reliance on this Guaranty, and the assumption by Guarantor of its obligations
under this Guaranty results in direct financial benefit to Guarantor.
6. Subject to Section 2 above, this Guaranty shall commence upon execution
and delivery of any of the Documents and shall continue in full force and effect
until all of the Obligations are duly, finally and permanently paid, performed
and discharged and are not subject to any right of reborrowing or extension by
Borrowers, and Lender gives Guarantor written notice of the full and final
satisfaction of the Obligations. The Obligations shall not be considered fully
paid, performed and discharged unless and until all payments by Borrowers to
Lender are no longer subject to any right on the part of any person whomsoever,
including but not limited to Borrowers, Borrowers as a debtor-in-possession
and/or any trustee in bankruptcy, to disgorge such payments or seek to recoup
the amount of such payments or any part thereof. This Guaranty shall remain in
full force and effect and continue to be effective in the event that (i) any
petition is filed by or against Borrowers or Guarantor for liquidation or
reorganization, including, without limitation, under Title 11 of the United
States Code, 11 U.S.C. Sec. 101 et seq. (the "Code"), (ii) Borrowers or
Guarantor becomes insolvent or makes an assignment for the benefit of creditors
or (iii) a receiver or trustee is appointed for all or any significant part of
Borrowers' or Guarantor's assets. This Guaranty shall continue to be effective
or be reinstated, as applicable, if at any time payment and performance of the
Obligations, or any part thereof, is, pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned by Lender, whether
as a "voidable preference", "fraudulent conveyance" or otherwise, all as though
such payment or performance had not been made. In the event that any payment of
the Obligations, or any part thereof, is rescinded, reduced, restored or
returned, the Obligations shall be reinstated and deemed reduced only by such
amount paid to Lender and not so rescinded, reduced, restored or returned.
7. Guarantor shall neither have any right of subrogation, indemnity or
reimbursement nor hold any other claim against Borrowers, and Guarantor does
hereby release Borrowers from any and all claims by Guarantor now or hereafter
arising against Borrowers. Furthermore, Guarantor hereby unconditionally and
irrevocably waives (a) any right to participate in any security now or hereafter
held by Lender or in any claim or remedy of Lender or any other person against
Borrowers with respect to the Obligations, (b) any statute of limitations
affecting Guarantor's liability hereunder, (c) all principles and provisions of
law which conflict with the terms of this Guaranty and (d) diligence,
presentment, protest, demand for performance, notice of nonperformance, notice
of intent to accelerate, notice of acceleration, notice of protest, notice of
dishonor, notice of execution of any Documents, notice of extension, renewal,
alteration or amendment, notice of acceptance of this Guaranty, notice of
defaults under any of the Documents and all other notices whatsoever.
8. Notwithstanding the preceding Section 7, in the event that Guarantor
shall have any claims against Borrowers, any indebtedness of Borrowers now or
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hereafter held by Guarantor is hereby subordinated to the indebtedness of
Borrowers to Lender. Any such indebtedness of Borrowers to Guarantor, if Lender
so requests, shall be collected, enforced and received by Guarantor as trustee
for Lender and be paid over to Lender on account of the Obligations, but without
reducing or affecting in any manner the liability of Guarantor under the other
provisions of this Guaranty.
9. It is not necessary for Lender to inquire into the powers of Borrowers
or its officers, directors, partners or agents acting or purporting to act on
its behalf, and Guarantor shall be liable for the Obligations in accordance with
their terms notwithstanding any lack of authorization or defect in execution or
delivery by Borrowers.
10. In addition to the amounts guaranteed under this Guaranty, Guarantor
agrees to pay (i) Lender's reasonable attorneys' fees and other costs and
expenses which may be incurred by Lender in the enforcement of this Guaranty and
(ii) interest (including postpetition interest to the extent a petition is filed
by or against Borrowers under the Code) at the Default Rate (as defined in the
Note) on any Obligations not paid when due. Guarantor hereby agrees to indemnify
and hold harmless Lender for, from and against any loss, cause of action, claim,
cost, expense or fee, including but not limited to attorney's fees and court
costs, suffered or occasioned by the failure of Borrowers to satisfy its
obligations under the Documents. The agreement to indemnify Lender contained in
this paragraph shall be enforceable notwithstanding the invalidity or
unenforceability of the Documents or any of them or the invalidity or
unenforceability of any other paragraph contained in this Guaranty. All moneys
available to Lender for application in payment or reduction of the liabilities
of Borrowers under the Documents may be applied by Lender to the payment or
reduction of such liabilities of Borrowers, in such manner, in such amounts and
at such time or times as Lender may elect.
11. All notices, demands, requests, consents, approvals or other
instruments required or permitted to be given pursuant to this Guaranty shall be
in writing and given by (i) hand delivery, (ii) facsimile, (iii) express
overnight delivery service or (iv) certified or registered mail, return receipt
requested, and shall be deemed to have been delivered upon (a) receipt, if hand
delivered, (b) transmission, if delivered by facsimile, (c) the next Business
Day (as defined in the Loan Agreement), if delivered by express overnight
delivery service or (d) the third Business Day following the day of deposit of
such notice with the United States Postal Service, if sent by certified or
registered mail, return receipt requested. Notices shall be provided to the
addresses (or facsimile numbers, as applicable) specified below:
If to Guarantor: Xxxxx Corporation
50 Xxxxxxx Plaza, Suite 1250
Providence, Rhode Island 02903
Attention: Chief Executive Officer
Telecopy: (000) 000-0000
If to Lender: First National Bank of Omaha
0000 Xxxxx Xxxxxx XXXX 0000
Xxxxx, XX 00000-0000
Attention: Xxxx X. XxXxxxxx
Telecopy: (000) 000-0000
or to such other address or such other person as either Guarantor or Lender may
from time to time hereafter specify to the other party in a notice delivered in
the manner provided above.
12. It is the intent of Guarantor and Lender that this Guaranty shall be
deemed to be a contract made under and governed by the internal laws of the
State of New York, without regard to its principles of conflicts of law. For
purposes of any action or proceeding involving this Guaranty, Guarantor submits
to the jurisdiction of all federal and state courts located in the State of
Nebraska and consents that it may be served with any process or paper by
registered mail or by personal service within or without the State of Nebraska
in accordance with applicable law. Furthermore, Guarantor waives and agrees not
to assert in any such action, suit or proceeding that it is not personally
subject to the jurisdiction of such courts, that the action, suit or proceeding
is brought in an inconvenient forum or that venue of the action, suit or
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proceeding is improper. Nothing contained in this section shall limit or
restrict the right of Lender to commence any proceeding in the federal or state
courts located in the state in which the Premises is located and/or where
Guarantor resides to the extent Lender deems such proceeding necessary or
advisable to exercise remedies available under the Documents.
13. Guarantor intends that the business relationship created between
Borrowers and Lender by the Loan Agreement, the Note, the Mortgage and the other
Documents is solely that of creditor and Borrowers and has been entered into by
such parties in reliance upon the economic and legal bargains contained in the
Documents. Furthermore, Guarantor shall support the intent of Guarantor,
Borrowers and Lender that the Loan, the Note and the Mortgage do not create a
joint venture, partnership, trust, trust agreement or the like, if, and to the
extent that, any challenge occurs, and Guarantor shall not assert that the Loan,
the Note or the Mortgage creates a joint venture, partnership, trust, trust
agreement or the like.
14. Guarantor acknowledges that Lender did not prepare or assist in the
preparation of any of the projected financial figures used by Borrowers in
analyzing the economic viability and feasibility of the transactions
contemplated by the Loan Agreement. Furthermore, Guarantor acknowledges that
Borrowers has not relied upon, nor may it hereafter rely upon, the analysis
undertaken by Lender in determining the amount of the Loan and that such
analysis will not be made available to Borrowers.
15. All of Lender's rights and remedies under the Documents and this
Guaranty are intended to be distinct, separate and cumulative and no such right
and remedy is intended to be in exclusion of or a waiver of any of the others.
If under applicable law, Lender proceeds to realize benefits under any Document
granting Lender a lien upon any collateral pledged under such Document, either
by judicial foreclosure or by non-judicial sale or enforcement, Lender may, at
its sole option, determine which of such remedies or rights it may pursue
without affecting any of such rights and remedies under this Guaranty. If, in
the exercise of any of its rights and remedies, Lender shall forfeit any of its
rights or remedies, including its right to enter a deficiency judgment against
Borrowers or any pledgor, whether because of any applicable laws pertaining to
"election of remedies" or the like, Guarantor hereby consents to such action by
Lender and waives any claim based upon such action, even if such action by
Lender shall result in a full or partial loss of any rights of subrogation which
Guarantor might otherwise have had but for such action by Lender. Any election
of remedies which results in the denial or impairment of the right of Lender to
seek a deficiency judgment against Borrowers or any pledgor shall not impair
Guarantor's obligation to pay the full amount of the Obligations. In the event
Lender shall bid at any foreclosure or trustee's sale or at any private or
public sale permitted by law or under the Documents, Lender may bid all or less
than the amount of the Obligations and the amount of such bid need not be paid
by Lender but shall be credited against the Obligations. The amount of the
successful bid at any such sale shall be conclusively deemed to be the fair
market value of the collateral and the difference between such bid amount and
the remaining balance of the Obligations shall be conclusively deemed to be the
amount of the Obligations guaranteed under this Guaranty, notwithstanding that
any present or future law or court decision or ruling may have the effect of
reducing the amount of any deficiency claim to which Lender might otherwise be
entitled but for such bidding at any such sale.
16. This Guaranty is solely for the benefit of Lender, its successors and
assigns and is not intended to nor shall it be deemed to be for the benefit of
any third party, including, without limitation, Borrowers. This Guaranty and all
obligations of Guarantor hereunder shall be binding upon the successors and
assigns of Guarantor (including, a debtor-in-possession on behalf of Guarantor)
and shall, together with the rights and remedies of Lender, hereunder, inure to
the benefit of Lender, all future holders of any instrument evidencing any of
the Obligations and its successors and assigns. No sales, participations,
assignments, transfers or other dispositions of any agreement governing or
instrument evidencing the Obligations or any portion thereof or interest therein
shall in any manner affect the rights of Lender or its successors and assigns
hereunder. Guarantor may not assign, sell, hypothecate or otherwise transfer any
interest in or obligation under this Guaranty.
17. If any provision of this Guaranty is unenforceable, the enforceability
of the other provisions shall not be affected and they shall remain in full
force and effect.
18. Guarantor agrees to take such action and to sign such other documents
as may be appropriate to carry out the intent of this Guaranty.
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19. This Guaranty may be executed in one or more counterparts, each of
which shall be deemed an original.
20. LENDER, BY ACCEPTING THIS GUARANTY, AND GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE TO A TRIAL BY JURY
WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM BROUGHT BY LENDER OR GUARANTOR AGAINST THE OTHER OR THEIR
SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS
GUARANTY, THE RELATIONSHIP OF LENDER, BORROWERS AND/OR GUARANTOR, BORROWERS' USE
OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY
EMERGENCY OR STATUTORY REMEDY. THIS WAIVER BY LENDER AND GUARANTORS OF ANY RIGHT
THEY MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS A MATERIAL
INDUCEMENT FOR LENDER ACCEPTING THIS GUARANTY. FURTHERMORE, EACH OF LENDER AND
GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT
MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM THE
OTHER AND ANY OF THE OTHER'S AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES OR ANY
OF THEIR SUCCESSORS WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER OR
ANY OF THE OTHER'S AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES OR ANY OF THEIR
SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS
GUARANTY OR ANY DOCUMENTS CONTEMPLATED HEREIN OR RELATED HERETO. THE WAIVER BY
LENDER AND GUARANTOR OF ANY RIGHT THEY MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL,
SPECIAL AND INDIRECT DAMAGES HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF
THEIR BARGAIN.
21. Guarantor shall be liable under this Guaranty for the maximum amount of
such liability that can be incurred hereby without rendering this Guaranty, as
it relates to the Guarantor, voidable under applicable laws relating to
fraudulent conveyance or fraudulent transfer, and not for any greater amount.
Guarantor agrees that the Obligations may at any time and from time to time
exceed the amount of the liability of Guarantor hereunder without impairing this
Guaranty or affecting the rights and remedies of Lender hereunder.
22. Guarantor, by executing this Guaranty, hereby consents to the
completion, execution and delivery of the Amended and Restated Note and
acknowledges that its obligations to Lender under this Guaranty are continuing
in nature and are not altered, modified or affected in any manner by virtue of
the completion, execution and delivery of the Amended and Restated Note and the
terms and conditions of the amendments to the Note set forth therein.
23. Guarantor acknowledges and agrees that it has received a copy, read and
understands the Loan Agreement and its related documents between M-Tron
Industries, Inc., Piezo Technology, Inc., and the Lender.
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IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty
effective as of the date set forth in the introductory paragraph of this
Guaranty.
GUARANTOR:
Xxxxx Corporation, an Indiana Corporation
By /s/ Xxxx X. Xxxxxxx
---------------------------------
Its President & CEO
Federal Tax I.D. Number:
00-0000000
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STATE OF CONNECTICUT )
) SS. GREENWICH
COUNTY OF FAIRFIELD )
The foregoing instrument was acknowledged before me this 14th day of
October, 2004, by XXXX X. XXXXXXX as PRESIDENT and duly authorized officer of
Xxxxx Corporation as his and the corporation's free act and deed.
/s/ Xxxxxxx X. XxXxxxxx
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Notary Public
My Commission Expires:
____________________________________
