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EXHIBIT 4.5
GUARANTOR SECURITY AGREEMENT
This GUARANTOR SECURITY AGREEMENT, dated as of June 24, 1997 (this
"Security Agreement"), is by 976459 ONTARIO LIMITED, a corporation organized
under the laws of the Province of Ontario (the "Debtor") in favor of FIRST
CHICAGO NBD BANK, CANADA, in its capacity as the Affiliate designated by NBD
Bank, a Michigan banking corporation, to make Canadian Advances and as
collateral agent for the Lenders for the purpose of holding this security as
specified in the Credit Agreement referred to below (the "Secured Party").
1. CREATION OF SECURITY INTEREST
(1) For value received, Debtor hereby grants to Secured Party a security
interest (the "Security Interest") in the undertaking of Debtor and in all
Goods (including all parts, accessories, attachments, special tools, additions
and accessions thereto), Chattel Paper, Documents of Title (whether negotiable
or not), Instruments, Intangibles and Securities now owned or hereafter owned
or acquired by or on behalf of Debtor (including such as may be returned to or
repossessed by Debtor) and in all proceeds and renewals thereof, accretions
thereto and substitutions therefor (hereinafter collectively called
"Collateral"), including, without limitation, all of the following now owned or
hereafter owned or acquired by or on behalf of Debtor:
(i) all inventory of whatever kind and wherever
situate ("Inventory");
(ii) all equipment (other than Inventory) of whatever
kind and wherever situate, including, without limitation, all
machinery, tools, apparatus, plant, furniture, fixtures and
vehicles of whatsoever nature or kind;
(iii) all book accounts and book debts and generally
all accounts, debts, dues, claims, choses in action and
demands of every nature and kind howsoever arising or secured
including letters of credit and advices of credit, which are
now due, owing or accruing or growing due to or owned by or
which may hereafter become due, owing or accruing or growing
due to or owned by Debtor ("Debts");
(iv) all deeds, documents, writings, papers, books of
account and other books relating to or being records of Debts,
Chattel Paper or Documents of Title or by which such are or
may hereafter be secured, evidenced, acknowledged or made
payable;
(v) all contractual rights and insurance claims and
all goodwill, patents, trademarks, copyrights, and other
industrial property;
(vi) all monies other than trust monies lawfully
belonging to others; and
(vii) all property described in any schedule now or
hereafter annexed hereto.
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(2) The Security Interest granted hereby shall not extend or
apply to and Collateral shall not include the last day of the term of any lease
or agreement therefor but upon the enforcement of the Security Interest Debtor
shall stand possessed of such last day in trust to assign the same to any
person acquiring such term.
(3) The terms "Goods", "Chattel Paper", "Documents of Title",
"Instruments", "Intangibles", "Securities", "proceeds", "inventory" and
"accession" whenever used herein shall be interpreted pursuant to their
respective meanings when used in the Personal Property Security Act of Ontario,
as amended from time to time, which Act, including amendments thereto and any
Act substituted therefor and amendments thereto is herein referred to as the
"P.P.S.A." Provided always that the term "Goods" when used herein shall not
include "consumer goods" of Debtor as that term is defined in the P.P.S.A., and
the term "Inventory" when used herein shall include livestock and the young
thereof after conception and crops that become such within the year of
execution of this Security Agreement. Any reference herein to "Collateral"
shall, unless the context otherwise requires, be deemed a reference to
"Collateral or any part thereof".
(4) As used herein, the term "Credit Agreement" means the Credit
Agreement dated as of the date hereof among Oxford Automotive, Inc., a
corporation incorporated under the laws of the State of Michigan (the
"Company"), each of the Subsidiaries of the Company designated under Section
1.1 of the Credit Agreement as a "Borrowing Subsidiary", the lenders party
thereto from time to time (the "Lenders") and the Agent, as amended or
modified from time to time. Capitalized terms used but not defined herein shall
have the meanings ascribed thereto in the Credit Agreement.
2. OBLIGATIONS SECURED
The Security Interest granted hereby secures payment and
satisfaction of any and all of the following (the "Obligations"): any and all
existing and future indebtedness, obligation and liability of every kind,
nature and character, direct or indirect, absolute or contingent (including
without limitation all indebtedness, obligations and liabilities pursuant to
any Loans, Letters of Credit, Bankers' Acceptances and other Advances and all
interest, fees, and other charges thereon and all renewals, extensions and
modifications thereof and all fees, costs and expenses incurred by the Agent or
any of the Lenders in connection with the documentation, administration,
collection or enforcement thereof), of the Debtor or of the Company to the
Agent or any of the Lenders or any branch, subsidiary or affiliate thereof,
howsoever and whensoever created, arising, evidenced or acquired pursuant to
the Credit Agreement, the Notes, the Security Documents, any Rate Hedging
Agreements or any other agreement, instrument or documents executed in
connection therewith at any time (all of the foregoing, as amended or modified
from time to time, collectively referred to as the "Loan Documents"). The
Obligations secured by this Agreement are continuing in nature and include
those Obligations secured by the Guarantor Security Agreement dated February
11, 1997 by the Debtor in favor of the Secured Party.
3. REPRESENTATIONS AND WARRANTIES OF DEBTOR
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Debtor represents and warrants and so long as this Security Agreement
remains in effect shall be deemed to continuously represent and warrant that:
(1) the Collateral is genuine and owned by Debtor free of all
security interests, mortgages, liens, claims, charges or other encumbrances
(hereinafter collectively called "Liens"), save for the Security Interest and
Permitted Liens;
(2) to the best of the Debtor's knowledge, other than as
disclosed in writing by the Debtor to the Secured Party, each Debt, Chattel
Paper and Instrument constituting Collateral is enforceable in accordance with
its terms against the party obligated to pay the same (the "Account Debtor"),
and the amount represented by Debtor to Secured Party from time to time as
owing by each Account Debtor or by all Account Debtors will be the correct
amount actually and unconditionally owing by such Account Debtor or Account
Debtors, except for normal cash discounts where applicable, and no Account
Debtor will have any defence, set off, claim or counterclaim against Debtor
which can be asserted against Secured Party, whether in any proceeding to
enforce Collateral or otherwise; and
(3) the locations specified n Schedule "A" hereto as to business
operations and records are accurate and complete and, with respect to Goods
(including Inventory) constituting Collateral, the locations specified in
Schedule "A" hereto are accurate and complete save for Goods in transit to such
locations and Inventory on lease or consignment; and all fixtures or Goods
about to become fixtures and all crops and all oil, gas or other minerals to be
extracted and all timber to be cut which forms part of the Collateral will be
situate at one of such locations.
4. USE OF COLLATERAL BY DEBTOR AND CONFIRMATION OF COLLATERAL BY SECURED
PARTY
Subject to compliance with Debtor's covenants contained herein, Debtor
may, until default, possess, operate, collect, use and enjoy and deal with
Collateral in the ordinary course of Debtor's business in any manner not
inconsistent with the provisions hereof; provided always that Secured Party
shall have the right at any time and from time to time to confirm the existence
and state of the Collateral in any manner Secured Party may consider
appropriate and Debtor agrees to furnish all assistance and information and to
perform all such acts as Secured Party may reasonably request in connection
therewith and to all places where Collateral may be located and to all premises
occupied by Debtor.
5. RECEIPTS OF INCOME FROM AND INTEREST ON COLLATERAL
(1) Until default, Debtor shall have the right to receive any monies
constituting income from or interest on Collateral and if Secured Party
receives any such monies prior to default, Secured Party shall either credit
the same to the account of Debtor or pay the same promptly to Debtor.
(2) After default, Debtor will not request or receive any monies
constituting income from
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or interest on Collateral and if Debtor receives any such monies, Debtor will
receive the same in trust for and promptly pay the same to Secured Party.
6. INCREASES, PROFITS, PAYMENTS OR DISTRIBUTIONS REGARDING COLLATERAL
(1) Whether or not default has occurred, Debtor authorizes Secured Party
(i) to receive any increase in or profits on
Collateral (other than money) and to hold the same as part of
Collateral; money so received shall be treated as income for
the purposes of Clause 5 hereof and dealt with accordingly;
and
(ii) to receive any payment or distribution upon
redemption or retirement or upon dissolution and liquidation
of the issuer of Collateral; to surrender Collateral in
exchange therefor; and to hold any such payment or
distribution as part of the Collateral.
(2) If Debtor receives any such increase or profits (other than money)
or payments or distributions, Debtor will receive the same in trust for and
deliver the same promptly to Secured Party to be held by Secured Party as
herein provided.
7. SECURITIES FORMING PART OF COLLATERAL
If Collateral at any time includes Securities, Debtor authorizes Secured
Party to transfer the same or any part thereof into its own name or that of its
nominee(s) so that Secured Party or its nominee(s) may appear of record as the
sole owner thereof; provided that, until default, Secured Party shall deliver
promptly to Debtor all notices or other communications received by it or its
nominee(s) as such registered owner and, upon demand and receipt of payment of
any necessary expenses thereof, shall issue to Debtor or its order a proxy to
vote and take all action with respect to such Securities. After enforcement of
remedies hereunder, Debtor waives all rights to receive any notices or
communications received by Secured Party or its nominee(s) as such registered
owner and agrees that no proxy issued by Secured Party to Debtor or its order
as aforesaid shall thereafter be effective.
8. COLLECTION OF DEBTS FORMING PART OF COLLATERAL
After default, Secured Party may notify all or any Account Debtors of the
Security Interest and may also direct such Account Debtors to make all payments
on Collateral to Secured Party. Debtor acknowledges that any payments on or
other proceeds of Collateral received by Debtor from Account Debtors, before or
after notification of this Security Interest to Account Debtors, if received
after default, shall be received and held by Debtor in trust for Secured Party
and shall be turned over
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to Secured Party upon request.
9. COVENANTS OF THE DEBTOR
So long as this Security Agreement remains in effect, Debtor covenants and
agrees:
(1) to defend the Collateral against the claims and demands of all other
parties claiming the same or an interest therein; to keep the Collateral free
from all Liens, except for the Security Interest and Permitted Liens or
hereafter approved in writing, prior to their creation or assumption, by
Secured Party; and not to sell, exchange, transfer, assign, lease, or otherwise
dispose of Collateral or any interest therein without the prior written consent
of Secured Party, except to the extent permitted under the Credit Agreement;
provided always that, until default, Debtor may, in the ordinary course of
Debtor's business, sell or lease Inventory and, subject to Clause 8 hereof, use
monies available to Debtor;
(2) to notify Secured Party promptly of:
(i) any change in the information contained herein or
in the Schedules hereto relating to Debtor, Debtor's business
or Collateral; and
(ii) any material loss of or damage to Collateral;
(3) to keep the Collateral in good order, condition and repair and not
to use Collateral in violation of the provisions of this Security Agreement or
any other agreement relating to Collateral or any policy insuring Collateral or
any applicable statute, law, by-law, rule, regulation or ordinance;
(4) to do, execute, acknowledge and deliver such financing statements
and further assignments, transfers, documents, acts, matters and things
(including further schedules hereto) as may be reasonably requested by Secured
Party of or with respect to Collateral in order to give effect to these
presents and to pay all costs for searches and filings in connection therewith;
(5) to pay all taxes, rates, levies, assessments and other charges of
every nature which may be lawfully levied, assessed or imposed against or in
respect of Debtor or Collateral as and when the same become due and payable;
(6) to insure the Collateral for such periods, in such amounts, on such
terms and against loss or damage by fire and such other risks as Secured Party
shall reasonably direct with loss payable to Secured Party and Debtor, as
insured, as their respective interests may appear, and to pay all premiums
therefor;
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(7) to prevent Collateral, save Inventory sold or leased as permitted
hereby, from being or becoming an accession to other property not covered by
this Security Agreement;
(8) to carry on and conduct the business of Debtor in a proper and
efficient manner and so as to protect and preserve the Collateral and to keep,
in accordance with generally accepted accounting principles, consistently
applied, proper books of account for Debtor's business as well as accurate and
complete records concerning Collateral, and mark any and all such records and
Collateral as Secured Party's request so as to indicate the Security Interest;
and
(9) to deliver to Secured Party from time to time promptly upon request:
(i) any Documents of Title, Instruments, Securities
and Chattel Paper constituting, representing or relating to
Collateral;
(ii) all books of account and all records, ledgers,
reports, correspondence, schedules, documents, statements,
lists and other writing relating to Collateral for the
purpose of inspecting, auditing or copying the same;
(iii) all financial statements prepared by or for
Debtor regarding Debtor's business;
(iv) all policies and certificates of insurance
relating to Collateral; and
(v) such information concerning Collateral, Debtor
and Debtor's business and affairs as Secured Party may
reasonably request.
10. EVENTS OF DEFAULT
The happening of any of the following events or conditions shall
constitute default hereunder which is herein referred to as "default":
(1) the nonpayment when due, whether by acceleration or otherwise, of
any principal or interest forming part of the Obligations or the failure of
Debtor to observe or perform any obligation, covenant, term, provision or
condition contained in this Security Agreement; or
(2) any Event of Default under the Credit Agreement.
11. ACCELERATION
Secured Party, in its sole discretion, may declare all or any part of the
Obligations not
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payable on demand to be immediately due and payable, without demand or notice
of any kind, in the event of default. The provisions of this clause are not
intended in any way to affect any rights of Secured Party with respect to
Obligations which may now or hereafter be payable on demand.
12. REMEDIES
(1) Upon default, Secured Party may appoint or reappoint by instrument
in writing, any person or persons, whether an officer or officers or an
employee or employees of Secured Party or not, to be a receiver or receivers
(hereinafter called a "Receiver", which term when used herein shall include a
receiver and manager) of Collateral (including any interest, income or profits
therefrom) and may remove any Receiver so appointed and appoint another in his
stead. Any such Receiver shall, so far as concerns responsibility for his
acts, be deemed the agent of Debtor and not Secured Party, and Secured Party
shall not be in any way responsible for any misconduct, negligence or
nonfeasance on the part of any such Receiver, his servants, agents or
employees. Subject to the provisions of the instrument appointing him, any
such Receiver shall have power to take possession of Collateral, to preserve
Collateral or its value, to carry on or concur in carrying on all or any part
of the business of Debtor and to sell, lease or otherwise dispose of or concur
in selling, leasing or otherwise disposing of Collateral. To facilitate the
foregoing powers, any such Receiver may, to the exclusion of all others,
including Debtor, enter upon, use and occupy all premises owned or occupied by
Debtor wherein Collateral may be situate, maintain Collateral upon such
premises, borrow money on a secured or unsecured basis and use Collateral
directly in carrying on Debtor's business or otherwise, as such Receiver shall,
in his discretion, determine. Except as may be otherwise directed by Secured
Party, all monies received from time to time by such Receiver in carrying out
his appointment shall be received in trust for and paid over to Secured Party.
Every such Receiver may, in the discretion of Secured Party, be vested with all
or any of the rights and powers of Secured Party.
(2) Upon default, Secured Party may, either directly or through its
agents or nominees, exercise all the powers and rights given to a Receiver by
virtue of the foregoing subclause (1).
(3) Secured Party may take possession of, collect, demand, sue on,
enforce, recover and receive Collateral and give valid and binding receipts and
discharges therefor and in respect thereof and, upon default, Secured Party may
sell, lease or otherwise dispose of Collateral in such manner, at such time or
otherwise dispose of Collateral in such manner, at such time or times and place
or places, for such consideration and upon such terms and conditions as to
Secured Party may seem reasonable.
(4) In addition to those rights granted herein and in any other
agreement now or hereafter in effect between Debtor and Secured Party and in
addition to any other rights Secured Party may have at law or in equity,
Secured Party shall have, both before and after default, all rights and
remedies of a secured party under the P.P.S.A. Provided always that Secured
Party shall not be
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liable or accountable for any failure to exercise its remedies, take possession
of, collect, enforce, realize, sell, lease or otherwise dispose of Collateral
or to institute proceedings for such purposes. Furthermore, Secured Party
shall have no obligation to take any steps to preserve rights against prior
parties to any Instrument or Chattel Paper, whether Collateral or proceeds and
whether or not in Secured Party's possession and shall not be liable or
accountable for failure to do so.
(5) Debtor acknowledges that Secured Party or any Receiver appointed by
it may take possession of Collateral wherever it may be located and by any
method permitted by law and Debtor agrees upon request from Secured Party or
any such Receiver to assemble and deliver possession of Collateral at such
place or places as directed.
(6) Debtor agrees to pay all costs, charges and expenses reasonably
incurred by Secured Party or any Receiver appointed by it, whether directly or
for services rendered (including reasonable solicitors' and auditors' costs and
other legal expenses and Receiver remuneration), in operating Debtor's
accounts, in preparing or enforcing this Security Agreement, taking custody of,
preserving, repairing, processing, preparing for disposition and disposing of
Collateral and in enforcing or collecting Obligations and all such costs,
charges and expenses together with any monies owing as a result of any
borrowing by Secured Party or any Receiver appointed by it, as permitted
hereby, shall be a first charge on the proceeds of realization, collection or
disposition of Collateral and shall be secured hereby.
(7) Unless the Collateral in question is perishable or unless Secured
Party believes on reasonable grounds that the Collateral in question will
decline speedily in value, Secured Party will give Debtor such notice of the
date, time and place of any public sale or of the date after which any private
disposition of Collateral is to be made, as may be required by the P.P.S.A.
13. DISPOSITION OF MONIES
Subject to any applicable requirements of the P.P.S.A., all monies
collected or received by Secured Party pursuant to or in exercise of any right
it possesses with respect to Collateral shall be applied on account of the
Obligations in such manner as described in the Credit Agreement or, at the
option of Secured Party, may be held unappropriated in a collateral account or
released to Debtor, all without prejudice to the liability of Debtor or the
rights of Secured Party hereunder. Debtor hereby acknowledges that if the
disposition of all or any Collateral by Secured Party or a Receiver pursuant
hereto does not give rise to sufficient funds to pay all Obligations secured
hereby Debtor shall remain liable for any deficiency until all Obligations have
been paid or satisfied in full. Any surplus shall be accounted for as required
by law.
14. MISCELLANEOUS
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(1) Debtor hereby authorizes Secured Party to file such financing
statements and other documents and do such acts, matters and things (including
completing and adding schedules hereto identifying Collateral or any Permitted
Liens affecting Collateral or identifying the locations at which Debtor's
business is carried on and Collateral and records relating thereto are situate)
as Secured Party may deem appropriate to perfect and continue the Security
Interest, to protect and preserve Collateral and its Security Interest in the
Collateral and to realize upon the Security Interest and Debtor hereby
irrevocably constitutes and appoints each Vice-President from time to time of
Secured Party the true and lawful attorney of Debtor, with full power of
substitution, to do any of the foregoing in the name of Debtor whenever and
wherever it may be deemed necessary or expedient.
(2) Without limiting any other right of Secured Party, whenever the
Obligations are immediately due and payable or Secured Party has the right to
declare the Obligations to be immediately due and payable (whether or not it
has so declared), Secured Party may, in its sole discretion, set off against
the Obligations any and all monies then owed to Debtor by Secured Party in any
capacity, whether or not due, and Secured Party shall be deemed to have
exercised such right of set off immediately at the time of making its decision
to do so even though any charge therefor is made or entered on Secured Party's
records subsequent thereto.
(3) Upon Debtor's failure to perform any of its duties hereunder,
Secured Party may, but shall not be obligated to, perform any or all of such
duties, and Debtor shall pay to Secured Party, forthwith upon written demand
therefor, an amount equal to the expense incurred by Secured Party in so doing
plus interest thereon from the date such expense is incurred until it is paid
at the Overdue Rate.
(4) After default, Secured Party may grant extensions of time and other
indulgences, take and give up security, accept compositions, compound,
comprise, settle, grant releases and discharges and otherwise deal with Debtor,
debtors of Debtor, sureties and others and with Collateral and other security
as Secured Party may see fit without prejudice to the liability of Debtor or
Secured Party's right to hold and realize the Security Interest. Furthermore,
Secured Party may, after default, demand, collect and sue on Collateral in
either Debtor's or Secured Party's name, at Secured Party's option, and may
endorse Debtor's name on any and all cheques, commercial paper and any other
Instruments pertaining to or constituting Collateral.
(5) No delay or omission by Secured Party in exercising any right or
remedy hereunder or with respect to any Obligations shall operate as a waiver
thereof or of any other right or remedy, and no single or partial exercise
thereof shall preclude any other or further exercise thereof or the exercise of
any other right or remedy. Furthermore, Secured Party may remedy any default
by Debtor hereunder or with respect to any Obligations in any reasonable manner
without waiving the default remedied and without waiving any other prior or
subsequent default by Debtor. All rights and remedies of Secured Party granted
or recognized herein are cumulative and may be exercised at any time and from
time to time independently or in combination.
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(6) Debtor waives protest of any Instrument constituting Collateral at
any time held by Secured Party on which Debtor is in any way liable and,
subject to Clause 12(7), notice of any other action taken by Secured Party.
(7) This Security Agreement shall enure to the benefit of and be binding
upon the parties hereto and their respective heirs, executors, administrators,
successors and assigns. In any action brought by an assignee of this Security
Agreement and the Security Interest or any part thereof to enforce any rights
hereunder, Debtor shall not assert against the assignee any claim or defence
which Debtor now has or hereafter may have against Secured Party.
(8) Save for any schedules which may be added hereto pursuant to the
provisions hereof, no modification, variation or amendment of any provision of
this Security Agreement shall be made except by a written agreement executed by
the parties hereto and no waiver of any provision hereof shall be effective
unless in writing.
(9) This Security Agreement and the transactions evidenced hereby shall
be governed by and construed in accordance with the laws of the Province of
Ontario as the same may from time to time be in effect, including, where
applicable, the P.P.S.A.
(10) Subject to the requirements of Clauses 12(7) and 14(11) hereof,
whenever either party hereto is required or entitled to notify or direct the
other or to make a demand or request upon the other, such notice, direction,
demand or request shall be in writing shall be sufficiently given only if
delivered to the party for whom it is intended at the principal address of such
party herein set forth or as changed pursuant hereto or if sent by prepaid
registered mail addressed to the party for whom it is intended at the principal
address of such party herein set forth or as changed pursuant hereto. Either
party may notify the other pursuant hereto of any change in such party's
principal address to be used for the purposes hereof.
(11) This Security Agreement and the security afforded hereby is in
addition to and not in substitution for any other security now or hereafter
held by Secured Party and is, and is intended to be, a continuing Security
Agreement and shall remain in full force and effect until the Obligations have
been paid and satisfied in full.
(12) The headings used in this Security Agreement are for convenience
only and are not to be considered a part of this Security Agreement and do not
in any way limit or amplify the terms and provisions of this Security
Agreement.
(13) When the context so requires, the singular number shall be read as
if the plural were expressed and the provisions hereof shall be read with all
grammatical changes necessary dependent upon the person referred to being a
male, female, firm or corporation.
(14) If any provisions of this Security Agreement, as amended from time
to time, shall be
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deemed invalid or void, in whole or in part, by any court of competent
jurisdiction, the remaining terms and provisions of this Security Agreement
shall remain in full force and effect.
(15) Nothing herein contained shall in any way obligate Secured Party to
grant, continue, renew, extend time for payment of or accept anything which
constitutes or would constitute Obligations.
(16) The Security Interest created hereby is intended to attach when this
Security Agreement is signed by Debtor and delivered to Secured Party.
15. COPY OF AGREEMENT
Debtor hereby acknowledges receipt of a copy of this Security Agreement.
IN WITNESS WHEREOF Debtor has executed this Security Agreement this 24th
day of June, 1997.
976459 ONTARIO LIMITED
By:______________________
Name:
Title:
Agreed to and Accepted by:
FIRST CHICAGO NBD BANK, CANADA,
as the Affiliate designated by NBD Bank to make
Canadian Advances and as collateral agent for the
Lenders for the purpose of holding this security
as specified in the Credit Agreement
By:__________________________________
Its:____________________________
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