Exhibit 10
AMENDMENT NO. 3 UNDER
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 3 UNDER AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment No. 3") is made the 28th day of April, 2003, by and
among JLG INDUSTRIES, INC., a Pennsylvania corporation ("JLG"), and certain of
its subsidiaries listed on Schedule 1 to the Credit Agreement (as defined below)
(each, together with JLG, individually a "Borrower" and individually and
collectively, the "Borrowers"); the Lenders listed on Schedule 2 to the Credit
Agreement; Wachovia Bank, National Association, as administrative agent and
documentation agent ("Administrative Agent") and BankOne, Michigan, as
syndication agent ("Syndication Agent").
BACKGROUND
Borrowers, Lenders, Administrative Agent and Syndication Agent
entered into an Amended and Restated Credit Agreement dated June 17, 2002, as
amended by Amendment No. 1 to Amended and Restated Credit Agreement dated August
30, 2002 and Amendment No. 2 and Waiver under Amended and Restated Credit
Agreement dated February 21, 2003 (as amended and as may be further amended from
time to time, the "Credit Agreement") to finance the Borrowers' working capital
and general corporate requirements.
Borrowers, Lenders, Administrative Agent and Syndication Agent
wish to make certain amendments to the Credit Agreement and grant certain
consents under the Credit Agreement, as set forth herein and subject to the
terms and conditions hereof.
In consideration of the foregoing and the premises and the
agreements hereinafter set forth, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Definitions.
a. General Rule. Unless otherwise defined herein,
terms used herein which are defined in the Credit Agreement shall have the
respective meanings assigned to such terms in the Credit Agreement.
b. Additional Definitions. As of the Amendment No. 3
Effective Date, the following definitions are hereby added to Section 1.1 of the
Credit Agreement to read in their entirety as follows:
"2003 Senior Unsecured Notes" means the senior
unsecured JLG Industries, Inc. notes in aggregate principal
amount at issuance of no less than $90,000,000, due in 2008.
"Amendment No. 3" means Amendment No. 3 to the Credit
Agreement by and among Borrowers, Lenders, Administrative
Agent and Syndication Agent, dated April 28, 2003.
"Amendment No. 3 Effective Date" means the date on
which the conditions set forth in Paragraph 11 of Amendment
No. 3 have been satisfied.
"Maximum Loss Exposure" means, as of the date of
determination, the estimated maximum amount of contractual
loss JLG or any of its Consolidated Subsidiaries may incur
under Monetization Transactions as a result of payment
defaults by obligors with respect to Monetization Assets, as
determined by JLG in good faith.
c. Amended Definitions. As of the Amendment No. 3
Effective Date, the following definitions set forth in Section 1.1 of the Credit
Agreement are hereby amended and restated in their entirety as set forth below:
"Adjusted Total Funded Debt" means, without
duplication, as of the last day of any Rolling Period, Total
Funded Debt, plus the aggregate Maximum Loss Exposure of JLG
and its Consolidated Subsidiaries, plus Guaranty Obligations
consisting of MOSAs.
"Aggregate Commitment" means the aggregate amount of
the Lenders' Commitments hereunder, as such amount may be
reduced or modified at any time or from time to time pursuant
to the terms hereof. On the Amendment No. 3 Effective Date,
the Aggregate Commitment shall be One Hundred Fifty Million
Dollars ($150,000,000).
2. Reduction of Commitment. As of the Amendment No. 3
Effective Date, Borrowers, Administrative Agent and Required Lenders agree that
the Aggregate Commitment shall be reduced to $150,000,000, under the terms of
Section 2.6 of the Credit Agreement.
3. Amended and Restated Schedule 2 to Credit Agreement. As of
the Amendment No. 3 Effective Date, Schedule 2 to the Credit Agreement (Lenders
and Commitments) is hereby amended and restated in its entirety as set forth on
Schedule 2 attached hereto.
4. Amendment to Section 9.2 (Adjusted Interest Coverage
Ratio). As of the Amendment No. 3 Effective Date, Section 9.2 of the Credit
Agreement is hereby amended and restated in its entirety as follows:
9.2 Adjusted Interest Coverage Ratio. As of the last
day of each fiscal quarter of JLG and its Consolidated
Subsidiaries, permit the Adjusted Interest Coverage Ratio to
be less than 2.25 to 1.00.
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5. Amendment to Section 9.4 (Adjusted Leverage Ratio). As of
the Amendment No. 3 Effective Date, Section 9.4 of the Credit Agreement is
hereby amended and restated in its entirety as follows:
9.4 Adjusted Leverage Ratio. As of the last day of
each fiscal quarter of JLG and its Consolidated Subsidiaries,
permit the Adjusted Leverage Ratio to exceed 6.00 to 1.00.
6. Additional Section 10.1(r) (Limitations on Debt and
Guaranty Obligations). As of the Amendment No. 3 Effective Date, Section 10.1(q)
of the Credit Agreement is hereby amended to replace "$15,000,000." with
"$15,000,000; and" and to add the following subsection 10.1(r) in its entirety:
(r) Debt incurred in connection with the issuance of
the 2003 Senior Unsecured Notes, not exceeding $125,000,000 in
aggregate principal amount at any time.
7. Amendment to Section 10.10 (Amendments; Payments and
Prepayments of Senior Subordinated Debt). As of the Amendment No. 3 Effective
Date, Section 10.10(iii) of the Credit Agreement is hereby amended to (a)
replace "Indenture." with "Indenture,"; (b) replace "Amendments; Payments and
Prepayments of Senior Subordinate Debt: in its entirety with "Amendments,
Payments and Prepayments of Senior Subordinated Debt and 2003 Senior Unsecured
Notes"; and (c) add the following subsection 10.10(iv) in its entirety:
(iv) cancel or forgive, make any voluntary or
optional payment or prepayment on, or redeem or acquire for
value (including without limitation by way of depositing with
any trustee with respect thereto money or securities before
due for the purpose of paying when due) any debt incurred in
connection with the issuance of the 2003 Senior Unsecured
Notes.
8. Consents and Waivers.
a. Section 10.10(ii) of the Credit Agreement
prohibits the Borrowers from making any voluntary or optional payment or
prepayment on, or redeeming or acquiring for value any, Senior Subordinated
Debt. Borrowers have informed Administrative Agent that they intend to acquire
for value and retire no more than $35,000,000 in aggregate principal amount of
Senior Subordinated Debt. As of the Amendment No. 3 Effective Date, Required
Lenders hereby consent to the Borrowers' acquisition for value and retirement of
no more than $35,000,000 in aggregate principal amount of Senior Subordinated
Debt, so long as such acquisition for value and retirement is completed within
six (6) months of the Amendment No. 3 Effective Date.
b. The Borrowers may be unable to maintain an
Adjusted Leverage Ratio for the fiscal quarter ended April 27, 2003 at the level
required by Section 9.4 of the Credit Agreement, prior to this Amendment No. 3.
As of the Amendment No. 3 Effective Date, Required Lenders hereby waive
Borrowers' compliance with and waive any Defaults or Events of Default arising
under Section 9.4 of the Credit Agreement for the fiscal quarter ended April
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27, 2003; provided, that the Adjusted Leverage Ratio, after giving effect to the
amendments made by this Amendment No. 3, was not more than 6.00 to 1.00 for such
fiscal quarter ending April 27, 2003.
9. Amendment to Section 13.12. Disclosure of Information;
Confidentiality. As of the Amendment No. 3 Effective Date, Section 13.12 of the
Credit Agreement is amended and restated to add the following to the end of the
first sentence:
; provided, further, that each party to this transaction (and
each employee, representative, or other agent of any taxpayer)
may disclose to any and all persons, without limitations of
any kind, the "structures" and "tax aspects" (as such terms
are used in Internal Revenue Code sections 6011, 6111 and 6112
and the regulation promulgated thereunder) of the transaction
and all materials of any kind (including opinions or other tax
analyses) that are provided to the party relating to such
"structure" and "tax aspects," and in addition, no party is
subject to any restriction concerning its consulting with its
tax adviser regarding the "structure" or "tax aspects" of this
transaction at any time. Each party hereto intends that this
transaction will not constitute a "confidential transaction"
under such Internal Revenue Code sections and regulations.
10. Representations and Warranties. As of the date hereof,
each Borrower hereby represents and warrants to Lenders as follows:
a. Representations. The representations and
warranties set forth in Article VI of the Credit Agreement, together with the
applicable Schedules related thereto, as amended and restated, are true and
correct in all material respects as of the date hereof, except for any
representation or warranty made as of an earlier date, which representation and
warranty shall remain true and correct in all material respects as of such
earlier date; (ii) no Event of Default or Default under the Credit Agreement
(except that which has been waived in this Amendment No. 3), has occurred and is
continuing; and (iii) no Borrower is aware of any Material Adverse Effect.
b. Power and Authority. Each Borrower has the power
and authority under the laws of its jurisdiction of incorporation or formation
and under its respective formation documents to execute and perform this
Amendment No. 3 and the other documents and agreements required hereunder
(collectively, the "Amendment Documents"); all necessary actions (corporate or
otherwise) for the execution and performance by each Borrower of the Amendment
Documents have been taken; and each of the Amendment Documents and the Credit
Agreement, as amended, constitute the valid and binding obligations of each
Borrower, enforceable in accordance with its respective terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar state, federal or foreign debtor relief laws from time to time in
effect which affect the enforcement of creditors' rights in general and the
availability of equitable remedies.
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c. No Violations of Law or Agreements. The execution
and performance of the Amendment Documents by Borrowers in accordance with their
respective terms will not: (i) violate any provisions of any applicable law or
regulation, foreign, federal, state or local, or the formation or organizational
documents of any Borrower or (ii) result in any breach or violation of, or
constitute a default or require the obtaining of any consent under, any material
agreement or instrument by which any Borrower is a party or by which any of its
property may be bound.
11. Conditions to Effectiveness of Amendment. This Amendment
No. 3 shall become effective immediately prior to the issuance of the 2003
Senior Unsecured Notes upon satisfaction (or waiver in accordance with Section
13.13 of the Credit Agreement) of each of the following conditions:
a. Overdraft Facility. The Administrative Agent shall
have received an amendment to the documentation evidencing the Overdraft
Facility, effecting modifications of the Overdraft Facility that conform to the
modifications to the Credit Agreement effected by Amendment No. 3 in all
pertinent respects, in form and substance reasonably acceptable to
Administrative Agent.
b. Amendment Fee. Payment by the Borrowers to the
Administrative Agent, for the benefit of each Lender which has executed this
Amendment No. 3, on a pro rata basis, of an amendment fee equal to .125% of each
such executing Lender's Commitment, as reduced by this Amendment No. 3.
c. 2003 Senior Unsecured Notes Indenture. This
Administrative Agent shall have received a copy of the Indenture between JLG,
the Note Guarantors (as defined therein) and The Bank of New York, as Trustee,
pursuant to which the 2003 Senior Unsecured Notes will be issued in form and
substance substantially similar in all material respects to the description of
the 2003 Senior Unsecured Notes attached hereto as Exhibit A.
d. Confirmation of Satisfaction of Conditions to
Closing of the 2003 Senior Unsecured Note Offering. Each of JLG, Credit Suisse
First Boston, as lead manager of the offering of the 2003 Senior Unsecured
Notes, acting on its own behalf and on behalf of the other initial purchasers of
such securities, shall have advised the Administrative Agent that all conditions
precedent to the closing of the offering of the 2003 Senior Unsecured Notes in
aggregate principal amount of no less than $90,000,000, other than the
effectiveness of this Amendment No. 3 and any other closing condition the
satisfaction of which is dependent upon the effectiveness of this Amendment No.
3, shall have been duly satisfied or waived.
12. Affirmations. Borrowers hereby: (i) affirm all the
provisions of the Credit Agreement, as amended by this Amendment No. 3, and (ii)
agree that the terms and conditions of the Credit Agreement and the Collateral
Security Documents shall continue in full force and effect as amended hereby.
13. Release. TO INDUCE THE ADMINISTRATIVE AGENT AND THE
LENDERS TO AGREE TO THE TERMS OF THIS AMENDMENT NO. 3, BORROWERS REPRESENT AND
WARRANT THAT AS OF THE DATE OF THIS AMENDMENT NO. 3,
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THERE ARE NO CLAIMS OR OFFSETS AGAINST OR DEFENSES OR COUNTERCLAIMS TO ITS
OBLIGATIONS UNDER THE LOAN DOCUMENTS AND IN ACCORDANCE THEREWITH:
a. EACH BORROWER WAIVES ANY AND ALL SUCH CLAIMS, OFFSETS,
DEFENSES OR COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING PRIOR TO THE DATE
OF ITS EXECUTION OF THIS AMENDMENT NO. 3; AND
b. EACH BORROWER RELEASES AND DISCHARGES THE ADMINISTRATIVE
AGENT AND THE LENDERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, SHAREHOLDERS, AFFILIATES AND ATTORNEYS (COLLECTIVELY, THE "RELEASED
PARTIES") FROM ANY AND ALL OBLIGATION, INDEBTEDNESS, LIABILITIES, CLAIMS,
RIGHTS, CAUSES OF ACTION OR DEMANDS WHATSOEVER, WHETHER KNOWN OR UNKNOWN,
SUSPECTED OR UNSUSPECTED, IN LAW OR EQUITY, WHICH ANY BORROWER EVER HAD, NOW
HAS, CLAIMS TO HAVE OR MAY HAVE AGAINST ANY RELEASED PARTY ARISING PRIOR TO THE
DATE HEREOF AND FROM OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED THEREBY, OTHER THAN OBLIGATIONS UNDER THE LOAN
DOCUMENTS.
14. Miscellaneous.
a. Borrowers agree to pay or reimburse Administrative
Agent for all reasonable fees and expenses (including without limitation
reasonable fees and expenses of counsel) incurred by Administrative Agent in
connection with the preparation, execution and delivery of this Amendment No. 3.
b. This Amendment No. 3 shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania,
without regard to conflicts of law or choice of law principles.
c. This Amendment No. 3 may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and shall be binding
upon all parties, their successors and assigns, and all of which taken together
shall constitute one and the same agreement.
d. Except as expressly set forth herein, the
execution, delivery and performance of this Amendment No. 3 shall not operate as
a waiver of any right, power or remedy of Administrative Agent or Lenders under
the Credit Agreement and the agreements and documents executed in connection
therewith or constitute a waiver of any provision thereof, nor shall anything
contained herein be construed as or constitute a consent to or waiver of any
further period or provision of the Credit Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this
Amendment No. 3 the day and year first above written.
Attest: JLG INDUSTRIES, INC.
By: __________________________________ By: _________________________________
Name: Thomas D. Singer Name:
Title: Secretary Title:
Attest: FULTON INTERNATIONAL, INC.
By: __________________________________ By: _________________________________
Name: Thomas D. Singer Name:
Title: Secretary Title:
Attest: JLG EQUIPMENT SERVICES, INC.
By: __________________________________ By: _________________________________
Name: Thomas D. Singer Name:
Title: Assistant Secretary Title:
Attest: GRADALL INDUSTRIES, INC.
By: __________________________________ By: _________________________________
Name: Thomas D. Singer Name:
Title: Assistant Secretary Title:
Attest: THE GRADALL COMPANY
By: __________________________________ By: _________________________________
Name: Thomas D. Singer Name:
Title: Assistant Secretary Title:
[EXECUTIONS CONTINUED]
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Attest: ACCESS FINANCIAL SOLUTIONS, INC.
By: __________________________________ By: _________________________________
Name: Name:
Title: Title:
JLG MANUFACTURING, LLC
Attest: By: JLG INDUSTRIES, INC.
By: __________________________________ By: _________________________________
Name: Name:
Title: Title:
Attest: JLG EUROPE BV
By: __________________________________ By: _________________________________
Name: Name:
Title: Title:
Attest: JLG MANUFACTURING EUROPE BVBA
By: _________________________________ By: _________________________________
Name: Name:
Title: Title:
[EXECUTIONS CONTINUED]
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LENDERS
WACHOVIA BANK, NATIONAL ASSOCIATION
as Administrative Agent, Documentation Agent and
Lender
By: _______________________________________________
Name:
Title:
BANK ONE, NA, successor by merger to Bank
One, Michigan, individually as a Lender and in its
capacity as Syndication Agent
By: _______________________________________________
Name:
Title:
JP MORGAN CHASE BANK, successor by merger
to THE CHASE MANHATTAN BANK, N.A.,
as a Lender
By: _______________________________________________
Name:
Title:
BANCO ESPIRITO SANTO, S.A., NASSAU
BRANCH, as a Lender
By: _______________________________________________
Name:
Title:
By: _______________________________________________
Name:
Title:
[EXECUTIONS CONTINUED]
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MANUFACTURERS AND TRADERS TRUST
COMPANY, successor in interest to Allfirst Bank,
f/k/a The First National Bank of Maryland, as a
Lender
By: _______________________________________________
Name:
Title:
HARRIS TRUST AND SAVINGS BANK,
as a Lender
By: _______________________________________________
Name:
Title:
NATIONAL CITY BANK OF PENNSYLVANIA,
as a Lender
By: _______________________________________________
Name:
Title:
COMERICA BANK, as a Lender
By: _______________________________________________
Name:
Title:
CITIZENS BANK OF PENNSYLVANIA, as a
Lender
By: _______________________________________________
Name:
Title:
[EXECUTIONS CONTINUED]
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SUNTRUST BANK, ATLANTA, as a Lender
By: _______________________________________________
Name:
Title:
BANK HAPOALIM B.M., as a Lender
By: _______________________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as a Lender
By: _______________________________________________
Name:
Title:
THE BANK OF NEW YORK, as a Lender
By: _______________________________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Lender
By: _______________________________________________
Name:
Title:
[EXECUTIONS CONTINUED]
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CREDIT LYONNAIS NEW YORK BRANCH, as a
Lender
By: _______________________________________________
Name:
Title:
ERSTE BANK, as a Lender
By: _______________________________________________
Name:
Title:
By: _______________________________________________
Name:
Title:
STANDARD FEDERAL BANK, N.A.,
as a Lender
By: _______________________________________________
Name:
Title:
SUNBANK,
as a Lender
By: _______________________________________________
Name:
Title:
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SCHEDULE 2
(Lenders and Commitments)
COMMITMENT
LENDER PERCENTAGE COMMITMENT
------ ---------- ----------
Wachovia Bank, National Association 13.00% $19,500,000
301 South College Street (TW-10)
Charlotte, NC 28288-0760 Swingline Commitment
Attention: Syndication Agency Services $20,000,000
Telephone No.: (704) 383-7698
Telecopy No.: (704) 383-0288
Bank One, Michigan 7.10% $10,650,000
611 Woodward Avenue, 2nd Floor
M11-8074
Detroit, MI 48226
Attention: Pat Dumphy
Telephone No.: (313) 225-1940
Telecopy No.: (313) 225-1212
Banco Espirito Santo e Comercial 2.00% $ 3,000,000
29th Floor
320 Park Avenue
New York, NY 10022
Attention: Terry Hull
Telephone No.: (212) 702-3430
Telecopy No.: (212) 750-3999
Manufacturers and Traders Trust Company 3.20% $ 4,800,000
2055 South Queen Street
MC 182-02-01
York, PA 17403
Attention: Kellie Matthews
Telephone No.: (717) 771-4905
Telecopy No.: (717) 771-4914
SunBank 1.40% $ 2,100,000
90 Maynard Street
Williamsport, PA 17701
Attention: Michael Vuocolo
Telephone No.: (570) 329-5607
Telecopy No.: (570) 322-3308
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Harris Trust & Savings Bank 6.20% $ 9,300,000
111 West Monroe Street
10th Floor West
Chicago, IL 60603-0755
Attention: Michael D. Pincus
Telephone No.: (312) 461-7036
Telecopy No.: (312) 461-2591
National City Bank of Pennsylvania 6.20% $ 9,300,000
National City Center
20 Stanwix Street
Pittsburgh, PA 15222-4802
Attention: Debra Riefner
Telephone No.: (412) 644-8880
Telecopy No.: (412) 644-8889
Comerica Bank 6.20% $ 9,300,000
Comerica Tower, De
troit Center
500 Woodward Avenue
MC3280, 9th Floor
Detroit, MI 48226-3280
Attention: Jeff Lafferty
Telephone No.: (313) 222-7806
Telecopy No.: (313) 222-3330
Citizens Bank of Pennsylvania 9.20% $13,800,000
10 S. 2nd Street
Harrisburg, PA 17101
Attention: Joseph Butto
Telephone No.: (717) 777-3357
Telecopy No.: (717) 777-3363
JP Morgan Chase Bank 8.30% $12,450,000
1975 Lake Street
Elmira, NY 14901
Attention: Christine M. McLeod
Vice President
Telephone No.: (607) 734-7824
Telecopy No.: (607) 734-7645
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SunTrust Bank 4.40% $ 6,600,000
919 East Main Street
Richmond, VA 23219
Attention: Steve Derby
Telephone No.: (804) 782-7348
Telecopy No.: (804) 782-5413
Bank Hapoliam BM (New York) 3.20% $ 4,800,000
1177 Avenue of the Americas
12th Floor
New York, NY 10036-2790
Attention: Laura Anne Rafa
Telephone No.: (212) 782-2177
Telecopy No.: (212) 782-2382
Credit Suisse First Boston 8.80% $13,200,000
11 Madison Avenue
New York NY 10010-3629
Attention: William O'Daly
Telephone No.: (212) 325-1986
Telecopy No.: (212) 743-2254
The Bank of New York 4.40% $ 6,600,000
One Wall Street
18th Floor
New York, NY 10286
Attention: Brandon Nedzi
Telephone No.: (212) 635-8628
Telecopy No.: (212) 635-7978
Bank of Tokyo - Mitsubishi Trust Company 4.40% $ 6,600,000
1251 Avenue of the Americas
U.S. Corporate Banking Division
15th Floor
New York, NY 10020-1104
Attention: Karen Opsolinski
Telephone No.: (212) 782-4798
Fax: (212) 782-6445
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Credit Lyonnais 4.40% $ 6,600,000
2200 Ross Avenue
Suite 4400 West
Dallas, TX 75201
Attention: Brian Myers
Telephone No.: (214) 220-2308
Fax: (214) 220-2323
Erste Bank 3.20% $ 4,800,000
280 Park Avenue
32nd Floor, West Building
New York, NY 10017
Attention: Bob Wagman
Telephone No.: (212) 894-5663
Fax: (212) 984-5627
Standard Federal Bank, N.A. 4.40% $ 6,600,000
27777 Inkster Road
MC 10-36
Farmington Hills, MI 48333
Attention: Kathleen Hallberg
Inside Counsel
Telephone No.: (248) 822-5707
Fax: (248) 473-4345
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