EXHIBIT 4.6
GUARANTY AGREEMENT
BY
ENTERPRISE PRODUCTS PARTNERS L.P.
IN FAVOR OF
THE CHASE MANHATTAN BANK, AS
ADMINISTRATIVE AGENT
DATED AS OF MARCH 7, 2000
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TABLE OF CONTENTS
Page
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ARTICLE 1 General Terms
Section 1.1 Terms Defined Above............................................ 1
Section 1.2 Certain Definitions............................................ 1
Section 1.3 Credit Agreement Definitions................................... 2
ARTICLE 2 The Guaranty
Section 2.1 Liabilities Guaranteed......................................... 2
Section 2.2 Nature of Guaranty............................................. 2
Section 2.3 Agent's Rights................................................. 2
Section 2.4 Guarantor's Waivers............................................ 3
Section 2.5 Maturity of Liabilities; Payment............................... 3
Section 2.6 Agent's Expenses............................................... 3
Section 2.7 Liability...................................................... 4
Section 2.8 Events and Circumstances Not Reducing or Discharging
Guarantor's Obligations........................................ 4
ARTICLE 3 Representations and Warranties
Section 3.1 By Guarantor................................................... 6
Section 3.2 No Representation by Banks..................................... 7
ARTICLE 4 Subordination of Indebtedness
Section 4.1 Subordination of All Guarantor Claims.......................... 7
Section 4.2 Claims in Bankruptcy........................................... 7
Section 4.3 Payments Held in Trust......................................... 7
Section 4.4 Liens Subordinate.............................................. 8
Section 4.5 Notation of Records............................................ 8
ARTICLE 5 Miscellaneous
Section 5.1 Successors and Assigns......................................... 8
Section 5.2 Notices........................................................ 8
Section 5.3 Business and Financial Information............................. 8
Section 5.4 Construction................................................... 8
Section 5.5 Invalidity..................................................... 9
Section 5.6 ENTIRE AGREEMENT............................................... 9
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GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of March 7, 2000, by ENTERPRISE PRODUCTS
PARTNERS L.P., a Delaware limited partnership (the "Guarantor"), is in favor of
THE CHASE MANHATTAN BANK, as administrative agent (the "Agent") for the several
banks "Banks") that are or become parties to the Credit Agreement defined below.
W I T N E S S E T H:
WHEREAS, ENTERPRISE PRODUCTS OPERATING L.P., a Delaware limited partnership
(the "Company"), the Agent and the Banks have entered into that certain Credit
Agreement dated as of July 28, 1999 (as amended two (2) times as of January 24,
2000, and March 7, 2000, and as the same may be further amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"); and
WHEREAS, one of the terms and conditions stated in the Credit Agreement for
the making of the loans described therein is the execution and delivery to the
Agent for the benefit of the Banks of this Guaranty Agreement;
NOW, THEREFORE, (i) in order to comply with the terms and conditions of the
Credit Agreement, (ii) to induce the Banks, at any time or from time to time, to
loan monies, with or without security to or for the account of Company in
accordance with the terms of the Credit Agreement, (iii) at the special
insistence and request of the Banks, and (iv) for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Guarantor hereby agrees as follows:
ARTICLE 1
General Terms
Section 1.1 Terms Defined Above. As used in this Guaranty Agreement,
the terms "Banks", "Company", "Guarantor" and "Credit Agreement" shall have the
meanings indicated above.
Section 1.2 Certain Definitions. As used in this Guaranty Agreement,
the following terms shall have the following meanings, unless the context
otherwise requires:
"Guarantor Claims" shall have the meaning indicated in Section 4.1 hereof.
"Guaranty Agreement" shall mean this Guaranty Agreement, as the same may
from time to time be amended, supplemented, or otherwise modified.
"Liabilities" shall mean (a) any and all Indebtedness of the Company
pursuant to the Credit Agreement, including without limitation (i) the
unpaid principal of and interest on the Revolving Credit Notes, including
without limitation, interest accruing subsequent to the filing of a
petition or other action concerning bankruptcy or other similar proceeding,
and (ii) payment and performance of all Letters of Credit or letter of
credit agreements executed in connection therewith; and (b) all renewals,
rearrangements, increases, extensions for any period, amendments,
supplements, exchanges or reissuances in whole or in part of the Revolving
Credit Notes, Letters of Credit or any other documents or instruments
evidencing any of the above.
Section 1.3 Credit Agreement Definitions. Unless otherwise defined
herein, all terms beginning with a capital letter which are defined in the
Credit Agreement shall have the same meanings herein as therein.
ARTICLE 2
The Guaranty
Section 2.1 Liabilities Guaranteed. Guarantor hereby irrevocably and
unconditionally guarantees in favor of the Agent for the benefit of the Banks
the prompt payment of the Liabilities when due, whether at maturity or
otherwise.
Section 2.2 Nature of Guaranty. This Guaranty Agreement is an absolute,
irrevocable, completed and continuing guaranty of payment and not a guaranty of
collection, and no notice of the Liabilities or any extension of credit already
or hereafter contracted by or extended to Company need be given to Guarantor.
This Guaranty Agreement may not be revoked by Guarantor and shall continue to be
effective with respect to debt under the Liabilities arising or created after
any attempted revocation by Guarantor and shall remain in full force and effect
until the Liabilities are paid in full and the Revolving Credit Commitments are
terminated, notwithstanding that from time to time prior thereto no Liabilities
may be outstanding. Company and the Banks may modify, alter, rearrange, extend
for any period and/or renew from time to time, the Liabilities, and the Banks
may waive any Default or Events of Default without notice to the Guarantor and
in such event Guarantor will remain fully bound hereunder on the Liabilities.
This Guaranty Agreement shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of the Liabilities is rescinded or
must otherwise be returned by any of the Banks upon the insolvency, bankruptcy
or reorganization of Company or otherwise, all as though such payment had not
been made. This Guaranty Agreement may be enforced by the Agent and any
subsequent holder of any of the Liabilities and shall not be discharged by the
assignment or negotiation of all or part of the Liabilities. Guarantor hereby
expressly waives presentment, demand, notice of non-payment, protest and notice
of protest and dishonor, notice of Default or Event of Default, notice of intent
to accelerate the maturity and notice of acceleration of the maturity and any
other notice in connection with the Liabilities, and also notice of acceptance
of this Guaranty Agreement, acceptance on the part of the Banks being
conclusively presumed by the Banks' request for this Guaranty Agreement and
delivery of the same to the Agent.
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Section 2.3 Agent's Rights. Guarantor authorizes the Agent, without
notice or demand and without affecting Guarantor's liability hereunder, to take
and hold security for the payment of this Guaranty Agreement and/or the
Liabilities, and exchange, enforce, waive and release any such security; and to
apply such security and direct the order or manner of sale thereof as the Agent
in its discretion may determine; and to obtain a guaranty of the Liabilities
from any one or more Persons and at any time or times to enforce, waive,
rearrange, modify, limit or release any of such other Persons from their
obligations under such guaranties.
Section 2.4 Guarantor's Waivers.
(a) General. Guarantor waives any right to require any of the Banks
to (i) proceed against Company or any other person liable on the
Liabilities, (ii) enforce any of their rights against any other guarantor
of the Liabilities, (iii) proceed or enforce any of their rights against or
exhaust any security given to secure the Liabilities, (iv) have Company
joined with Guarantor in any suit arising out of this Guaranty Agreement
and/or the Liabilities, or (v) pursue any other remedy in the Banks' powers
whatsoever. The Banks shall not be required to mitigate damages or take
any action to reduce, collect or enforce the Liabilities. Guarantor waives
any defense arising by reason of any disability, lack of partnership
authority or power, or other defense of Company or any other guarantor of
the Liabilities, and shall remain liable hereon regardless of whether
Company or any other guarantor be found not liable thereon for any reason.
Whether and when to exercise any of the remedies of the Banks under any of
the Loan Documents shall be in the sole and absolute discretion of the
Agent, and no delay by the Agent in enforcing any remedy, including delay
in conducting a foreclosure sale, shall be a defense to the Guarantor's
liability under this Guaranty Agreement. To the extent allowed by
applicable law, the Guarantor hereby waives any good faith duty on the part
of the Agent in exercising any remedies provided in the Loan Documents.
(b) Subrogation. Until the Liabilities have been paid in full, the
Guarantor waives all rights of subrogation or reimbursement against the
Company, whether arising by contract or operation of law (including,
without limitation, any such right arising under any federal or state
bankruptcy or insolvency laws) and waives any right to enforce any remedy
which the Banks now have or may hereafter have against the Company, and
waives any benefit or any right to participate in any security now or
hereafter held by the Agent or any Bank.
Section 2.5 Maturity of Liabilities; Payment. Guarantor agrees that if
the maturity of any of the Liabilities is accelerated by bankruptcy or
otherwise, such maturity shall also be deemed accelerated for the purpose of
this Guaranty Agreement without demand or notice to Guarantor. Guarantor will,
forthwith upon notice from the Agent, pay to the Agent the amount due and unpaid
by Company and guaranteed hereby. The failure of the Agent to give this notice
shall not in any way release Guarantor hereunder.
Section 2.6 Agent's Expenses. If Guarantor fails to pay the Liabilities
after notice from the Agent of Company's failure to pay any Liabilities at
maturity, and if the Agent obtains the services of an attorney for collection of
amounts owing by Guarantor hereunder, or obtaining advice of counsel in respect
of any of their rights under this Guaranty Agreement, or if suit is filed to
enforce this Guaranty Agreement, or if proceedings are had in any bankruptcy,
probate, receivership
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or other judicial proceedings for the establishment or collection of any amount
owing by Guarantor hereunder, or if any amount owing by Guarantor hereunder is
collected through such proceedings, Guarantor agrees to pay to the Agent the
Agent's reasonable attorneys' fees.
Section 2.7 Liability. It is expressly agreed that the liability of the
Guarantor for the payment of the Liabilities guaranteed hereby shall be primary
and not secondary.
Section 2.8 Events and Circumstances Not Reducing or Discharging
Guarantor's Obligations. Guarantor hereby consents and agrees to each of the
following to the fullest extent permitted by law, and agrees that Guarantor's
obligations under this Guaranty Agreement shall not be released, diminished,
impaired, reduced or adversely affected by any of the following, and waives any
rights (including without limitation rights to notice) which Guarantor might
otherwise have as a result of or in connection with any of the following:
(a) Modifications, etc. Any renewal, extension, modification,
increase, decrease, alteration, rearrangement, exchange or reissuance of
all or any part of the Liabilities, or of the Revolving Credit Notes, the
Letters of Credit or the Credit Agreement or any instrument executed in
connection therewith, or any contract or understanding between Company and
any of the Banks, or any other Person, pertaining to the Liabilities;
(b) Adjustment, etc. Any adjustment, indulgence, forbearance or
compromise that might be granted or given by any of the Banks to Company or
Guarantor or any Person liable on the Liabilities;
(c) Condition of Company or Guarantor. The insolvency, bankruptcy
arrangement, adjustment, composition, liquidation, disability, dissolution,
death or lack of power of Company or Guarantor or any other Person at any
time liable for the payment of all or part of the Liabilities; or any
dissolution of Company or Guarantor, or any sale, lease or transfer of any
or all of the assets of Company or Guarantor, or any changes in the
shareholders, partners, or members of Company or Guarantor; or any
reorganization of Company or Guarantor;
(d) Invalidity of Liabilities. The invalidity, illegality or
unenforceability of all or any part of the Liabilities, or any document or
agreement executed in connection with the Liabilities, for any reason
whatsoever, including without limitation the fact that the Liabilities, or
any part thereof, exceed the amount permitted by law, the act of creating
the Liabilities or any part thereof is ultra vires, the officers or
representatives executing the documents or otherwise creating the
Liabilities acted in excess of their authority, the Liabilities violate
applicable usury laws, the Company has valid defenses, claims or offsets
(whether at law, in equity or by agreement) which render the Liabilities
wholly or partially uncollectible from Company, the creation, performance
or repayment of the Liabilities (or the execution, delivery and performance
of any document or instrument representing part of the Liabilities or
executed in connection with the Liabilities, or given to secure the
repayment of the Liabilities) is illegal, uncollectible, legally impossible
or unenforceable, or the Credit Agreement or other documents or instruments
pertaining
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to the Liabilities have been forged or otherwise are irregular or not
genuine or authentic;
(e) Release of Obligors. Any full or partial release of the liability
of Company on the Liabilities or any part thereof, of any co-guarantors, or
any other Person now or hereafter liable, whether directly or indirectly,
jointly, severally, or jointly and severally, to pay, perform, guarantee or
assure the payment of the Liabilities or any part thereof, it being
recognized, acknowledged and agreed by Guarantor that Guarantor may be
required to pay the Liabilities in full without assistance or support of
any other Person, and Guarantor has not been induced to enter into this
Guaranty Agreement on the basis of a contemplation, belief, understanding
or agreement that other parties other than the Company will be liable to
perform the Liabilities, or the Banks will look to other parties to perform
the Liabilities.
(f) Other Security. The taking or accepting of any other security,
collateral or guaranty, or other assurance of payment, for all or any part
of the Liabilities;
(g) Release of Collateral, etc. Any release, surrender, exchange,
subordination, deterioration, waste, loss or impairment (including without
limitation negligent, willful, unreasonable or unjustifiable impairment) of
any collateral, property or security, at any time existing in connection
with, or assuring or securing payment of, all or any part of the
Liabilities;
(h) Care and Diligence. The failure of the Banks or any other Person
to exercise diligence or reasonable care in the preservation, protection,
enforcement, sale or other handling or treatment of all or any part of such
collateral, property or security;
(i) Status of Liens. The fact that any collateral, security, security
interest or lien contemplated or intended to be given, created or granted
as security for the repayment of the Liabilities shall not be properly
perfected or created, or shall prove to be unenforceable or subordinate to
any other security interest or lien, it being recognized and agreed by
Guarantor that Guarantor is not entering into this Guaranty Agreement in
reliance on, or in contemplation of the benefits of, the validity,
enforceability, collectibility or value of any of the collateral for the
Liabilities;
(j) Payments Rescinded. Any payment by Company to the Banks is held
to constitute a preference under the bankruptcy laws, or for any reason the
Banks are required to refund such payment or pay such amount to Company or
someone else; or
(k) Other Actions Taken or Omitted. Any other action taken or omitted
to be taken with respect to the Credit Agreement, the Liabilities, or the
security and collateral therefor, whether or not such action or omission
prejudices Guarantor or increases the likelihood that Guarantor will be
required to pay the Liabilities pursuant
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to the terms hereof; it being the unambiguous and unequivocal intention of
Guarantor that Guarantor shall be obligated to pay the Liabilities when
due, notwithstanding any occurrence, circumstance, event, action, or
omission whatsoever, whether contemplated or uncontemplated, and whether or
not otherwise or particularly described herein, except for the full and
final payment and satisfaction of the Liabilities.
ARTICLE 3
Representations and Warranties
Section 3.1 By Guarantor. In order to induce the Banks to accept this
Guaranty Agreement, Guarantor represents and warrants to the Banks (which
representations and warranties will survive the creation of the Liabilities and
any extension of credit thereunder) that:
(a) Benefit to Guarantor. Guarantor's guaranty pursuant to this
Guaranty Agreement reasonably may be expected to benefit, directly or
indirectly, Guarantor.
(b) Existence. Guarantor is a limited partnership duly organized,
legally existing and in good standing under the laws of the State of
Delaware and is duly qualified in all jurisdictions wherein the property
owned or the business transacted by it makes such qualification necessary.
(c) Power and Authorization. Guarantor is duly authorized and
empowered to execute, deliver and perform this Guaranty Agreement and all
action on Guarantor's part requisite for the due execution, delivery and
performance of this Guaranty Agreement has been duly and effectively taken.
(d) Binding Obligations. This Guaranty Agreement constitutes valid
and binding obligations of Guarantor, enforceable in accordance with its
terms (except that enforcement may be subject to any applicable bankruptcy,
insolvency or similar laws generally affecting the enforcement of
creditors' rights).
(e) No Legal Bar or Resultant Lien. This Guaranty Agreement will not
violate any provisions of Guarantor's articles or certificate of
incorporation, bylaws, or any contract, agreement, law, regulation, order,
injunction, judgment, decree or writ to which Guarantor is subject, or
result in the creation or imposition of any Lien upon any Properties of
Guarantor.
(f) No Consent. Guarantor's execution, delivery and performance of
this Guaranty Agreement does not require the consent or approval of any
other Person, including without limitation any regulatory authority or
governmental body of the United States or any state thereof or any
political subdivision of the United States or any state thereof.
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(g) Solvency. The Guarantor hereby represents that (i) it is not
insolvent as of the date hereof and will not be rendered insolvent as a
result of this Guaranty Agreement, (ii) it is not engaged in business or a
transaction, or about to engage in a business or a transaction, for which
any property or assets remaining with such Guarantor is unreasonably small
capital, and (iii) it does not intend to incur, or believe it will incur,
debts that will be beyond its ability to pay as such debts mature.
Section 3.2 No Representation by Banks. Neither the Banks nor any other
Person has made any representation, warranty or statement to the Guarantor in
order to induce the Guarantor to execute this Guaranty Agreement.
ARTICLE 4
Subordination of Indebtedness
Section 4.1 Subordination of All Guarantor Claims. As used herein, the
term "Guarantor Claims" shall mean all debts and liabilities of Company to
Guarantor, whether such debts and liabilities now exist or are hereafter
incurred or arise, or whether the obligation of Company thereon be direct,
contingent, primary, secondary, several, joint and several, or otherwise, and
irrespective of whether such debts or liabilities be evidenced by note,
contract, open account, or otherwise, and irrespective of the person or persons
in whose favor such debts or liabilities may, at their inception, have been, or
may hereafter be created, or the manner in which they have been or may hereafter
be acquired by Guarantor. The Guarantor Claims shall include without limitation
all rights and claims of Guarantor against Company arising as a result of
subrogation or otherwise as a result of Guarantor's payment of all or a portion
of the Liabilities. Until the Liabilities shall be paid and satisfied in full
and Guarantor shall have performed all of its obligations hereunder, Guarantor
shall not receive or collect, directly or indirectly, from Company or any other
party any amount upon the Guarantor Claims.
Section 4.2 Claims in Bankruptcy. In the event of receivership,
bankruptcy, reorganization, arrangement, debtor's relief, or other insolvency
proceedings involving Company as debtor, the Banks shall have the right to prove
their claim in any proceeding, so as to establish its rights hereunder and
receive directly from the receiver, trustee or other court custodian, dividends
and payments which would otherwise be payable upon Guarantor Claims. Guarantor
hereby assigns such dividends and payments to the Banks. Should the Agent or
any Bank receive, for application upon the Liabilities, any such dividend or
payment which is otherwise payable to Guarantor, and which, as between Company
and Guarantor, shall constitute a credit upon the Guarantor Claims, then upon
payment in full of the Liabilities, Guarantor shall become subrogated to the
rights of the Banks to the extent that such payments to the Banks on the
Guarantor Claims have contributed toward the liquidation of the Liabilities, and
such subrogation shall be with respect to that proportion of the Liabilities
which would have been unpaid if the Agent or a Bank had not received dividends
or payments upon the Guarantor Claims.
Section 4.3 Payments Held in Trust. In the event that notwithstanding
Sections 4.1 and 4.2 above, Guarantor should receive any funds, payments, claims
or distributions which is prohibited by such Sections, Guarantor agrees to hold
in trust for the Banks an amount equal to the amount of all funds, payments,
claims or distributions so received, and agrees that it shall have
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absolutely no dominion over the amount of such funds, payments, claims or
distributions except to pay them promptly to the Agent, and Guarantor covenants
promptly to pay the same to the Agent.
Section 4.4 Liens Subordinate. Guarantor agrees that any liens,
security interests, judgment liens, charges or other encumbrances upon Company's
assets securing payment of the Guarantor Claims shall be and remain inferior and
subordinate to any liens, security interests, judgment liens, charges or other
encumbrances upon Company's assets securing payment of the Liabilities,
regardless of whether such encumbrances in favor of Guarantor, the Agent or the
Banks presently exist or are hereafter created or attach. Without the prior
written consent of the Banks, Guarantor shall not (a) exercise or enforce any
creditor's right it may have against the Company, or (b) foreclose, repossess,
sequester or otherwise take steps or institute any action or proceeding
(judicial or otherwise, including without limitation the commencement of or
joinder in any liquidation, bankruptcy, rearrangement, debtor's relief or
insolvency proceeding) to enforce any lien, mortgages, deeds of trust, security
interest, collateral rights, judgments or other encumbrances on assets of
Company held by Guarantor.
Section 4.5 Notation of Records. All promissory notes, accounts
receivable ledgers or other evidence of the Guarantor Claims accepted by or held
by Guarantor shall contain a specific written notice thereon that the
indebtedness evidenced thereby is subordinated under the terms of this Guaranty
Agreement.
ARTICLE 5
Miscellaneous
Section 5.1 Successors and Assigns. This Guaranty Agreement is and
shall be in every particular available to the successors and assigns of the
Banks and is and shall always be fully binding upon the legal representatives,
heirs, successors and assigns of Guarantor, notwithstanding that some or all of
the monies, the repayment of which this Guaranty Agreement applies, may be
actually advanced after any bankruptcy, receivership, reorganization, death,
disability or other event affecting Guarantor.
Section 5.2 Notices. Any notice or demand to Guarantor under or in
connection with this Guaranty Agreement may be given and shall conclusively be
deemed and considered to have been given and received in accordance with
subsection 11.1 of the Credit Agreement, addressed to Guarantor at the address
on the signature page hereof or at such other address provided to the Agent in
writing.
Section 5.3 Business and Financial Information. The Guarantor will
promptly furnish to the Agent and the Banks from time to time upon request such
information regarding the business and affairs and financial condition of the
Guarantor and its subsidiaries as the Agent and the Banks may reasonably
request.
Section 5.4 Construction. This Guaranty Agreement is a contract made
under and shall be construed in accordance with and governed by the laws of the
State of New York.
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Section 5.5 Invalidity. In the event that any one or more of the
provisions contained in this Guaranty Agreement shall, for any reason, be held
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Guaranty
Agreement.
Section 5.6 ENTIRE AGREEMENT. THIS WRITTEN GUARANTY AGREEMENT EMBODIES
THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE BANKS AND THE GUARANTOR AND
SUPERSEDES ALL OTHER AGREEMENTS AND UNDERSTANDINGS BETWEEN SUCH PARTIES RELATING
TO THE SUBJECT MATTER HEREOF AND THEREOF. THIS WRITTEN GUARANTY AGREEMENT
REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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WITNESS THE EXECUTION HEREOF, as of the date first above written.
ENTERPRISE PRODUCTS PARTNERS L.P.,
a Delaware limited partnership
By: Enterprise Products GP, LLC, General Partner
By: /s/ RICHARD H. BACHMANN
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Richard H. Bachmann
Executive Vice President and
Chief Legal Officer
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