Exhibit 10.40
REAL ESTATE LEASE
THIS LEASE is made this 23rd day of November, 2000, between 9G's+,
Inc., an Indiana corporation, ("Landlord"), and ACI Telecentrics, Inc.,
("Tenant").
Landlord, in consideration of the rent and covenants herein contained,
leases to Tenant, and Tenant lets from Landlord a portion of the following
described premises (the "Premises"), being real estate in Lake County, Indiana,
described as follows:
The South wing of the building constructed on Lot One (1)
Gallas Fourth Addition to the Town of Schererville, Lake
County, Indiana.
This will be a unit of 12,000 square feet (200 feet by 60 feet) located
as shown on Exhibit A prepared by Xxxxx X. Xxxxxxxx & Associates and approved by
the State of Indiana.
The street address of the Premises is 000 X. X.X. Xxxxx 00, Xxxxxxxxxxxx,
Xxxxxxx.
This Lease is upon the following terms and conditions:
SECTION 1. TERM.
1.01 The term of this Lease shall begin forty-five (45) days after the
Town of Schererville approves a permit to commence construction of the interior
buildout of the unit and shall continue for six (6) years from that date. Tenant
shall have the option to renew this Real Estate Lease for an additional five (5)
year period by giving the Landlord six (6) months' notice prior to the end of
the initial term.
SECTION 2. RENT, TAXES, INSURANCE, COMMON AREA COSTS, MANNER OF PAYMENT AND
ARCHITECT'S FEES.
2.01 Tenant shall pay Landlord total rent in the sum of $168,000.00 per
year plus increases as hereinafter provided payable in installments of
$14,000.00 per month, in advance, with the first payment being due and payable
upon execution of this Real Estate Lease. Subsequent installments shall be paid
on the same day of each month commencing forty-five (45) days after the Town of
Schererville approves a permit to commence construction of the interior buildout
of the unit. This rent shall increase four percent (4%) every year commencing
January 1, 2003.
2.02 Tenant's failure to pay the full amount of any installment on or
before the due date shall be an event of default under this Lease, as
hereinafter provided. In addition, if the full amount of any installment is not
actually received by Landlord on or before the fifth (5th) day after it is due,
then a late charge in a sum equal to five percent (5%) of the unpaid amount of
each installment shall accrue and be immediately due and payable.
2.03 All sums payable to Landlord under this Lease shall be paid to
Landlord at the following address: 000 X. X.X. Xxxxx 00, Xxxxxxxxxxxx, Xxxxxxx
00000, or at such other address as Landlord shall designate in writing delivered
to Tenant.
2.04 All sums received by Landlord shall be applied first to rent due
and unpaid, second to any late charges due and unpaid and finally, to any other
sums due hereunder.
2.05 Tenant further agrees, upon execution of this Real Estate Lease,
to pay Landlord's architect, Xxxxx X. Xxxxxxxx & Associates, the sum of $4,000
for preparation of Exhibit A for submission to the State of Indiana, which
incorporates Tenant's specific construction requirements.
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SECTION 3. USE OF PREMISES.
3.01 Tenant shall use the Premises only for the following purpose(s):
operation of a business office. The leased real estate is commercial real estate
and shall at no time be used as residential property. No one shall be permitted
to live, sleep, or stay overnight on the premises.
3.02 Tenant shall not use, or pen-nit the use of, the Premises for any
unlawful purpose or in violation of any law, order or regulation of any
governmental authority or any restrictive covenant relating to the use or
occupancy of the Premises.
3.03 Tenant agrees to comply with all applicable Federal, State and
Local environmental laws and regulations, including those relating to air and
water pollution control and prevention, and disposal of any and all hazardous
waste or substances, and agrees to hold Landlord harmless from any liability
under said laws and regulations, not the Landlord's fault.
3.04 So long as Tenant is not in default under this Lease, Tenant shall
be entitled to peaceably possess, hold and enjoy the Premises.
3.05 Tenant shall pay all charges for gas, electricity, water, and
sewer incurred for the Premises during the Lease term; .
3.06 Tenant shall not permit any waste or misuse of the Premises.
SECTION 4. CONSTRUCTION
4.01 At the time of the execution of this Agreement the shell for 000
X. X.X. Xxxxx 00, Xxxxxxxxxxxx, Xxxxxxx, has been constructed. The interior
construction of the Unit will consist of drywall walls. Plumbing shall include
five bathroom units, each including toilet and sink, with one seventy-five
gallon hot water heater serving all five units and one utility sink. Electric
installation shall include 600-amp service and standard florescent fixtures. The
floor will be concrete and the ceiling will be two foot by two foot tiles. The
unit includes five air conditioner units with five ton capacity and four 80,000
BTU furnaces. Any other improvements shall be constructed at Tenant's costs and
shall become the property of the Landlord upon termination of this Real Estate
Lease. Tenant shall be responsible for all interior painting, carpet and floor
tile. Tenant shall pay for any signage, which must comply with the Schererville
Town Code. Tenant shall also be responsible for any extra electrical items that
Tenant wishes to install in the unit which must conform to appropriate State and
Municipal Codes. Tenant shall install its own computer, telephone and security
systems.
4.02 The Tenant has asked that Landlord provide it with an estimate as
to the cost of Landlord making certain improvements for the Tenant,. If Tenant
wishes Landlord to provide any of the estimated items, Landlord will provide a
specific proposal for Tenant. If the proposal is accepted, then Tenant will pay
50% of the cost prior to commencement of the work and 50% of the cost upon
occupancy of the Premises. The estimates are as follows:
Painting $6,000
Sign 5,000
Carpet ($20 per sq. yd.) 24,000
Tile 4,000
Extra electric per Exhibit A 10,000
Plumbing 15,000
The estimate for plumbing covers tile and ceramics in excess of plumbing
provided by Landlord. If Tenant wishes to provide all of the plumbing itself,
then Landlord will give Tenant a credit of $ 10,000. In other words, Landlord
estimates that Tenant's total plumbing costs will be $25,000.
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SECTION 5. REPAIRS AND MAINTENANCE.
5.01 LANDLORD'S OBLIGATION.
Landlord agrees, at Landlord's sole expense, to keep in good repair and
working order (except to the extent damaged by Tenant's fault):
(a) all structural portions of the Premises, including (without
limitation) foundations, walls, stairways, roof and exterior portions thereof;
and
(b) four (4) new central heating and air conditioning systems
5.02 TENANT'S OBLIGATIONS.
Tenant agrees:
(a) to keep, at Tenant's expense, the Premises in a clean, slightly and
healthful condition, and (b) to provide garbage containers and garbage
removal from the leased premises; and (c) to comply with all statutes
and ordinances concerning the maintenance and repair of the Premises;
and
(d) to surrender the Premises at the expiration of this Lease in as
good repair and condition as existed at the date of commencement of this Lease
term (after completion of any initial leasehold improvement by Tenant as
permitted or required by this Lease), reasonable wear and tear excepted.
5.03 LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS.
If Tenant fails to perform Tenant's obligations under this Lease,
Landlord or Landlord's agents may perform such obligations on behalf of Tenant.
In addition to the rent hereby reserved, Tenant shall pay Landlord, upon demand,
the expenses which Landlord incurred in performing Tenant's obligations.
5.04 LANDLORD'S RIGHT TO ENTER PREMISES.
Landlord or Landlord's agents shall have the right to enter the
Premises (without causing or constituting a termination of this Lease or an
interference with Tenant's possession) at all reasonable times for the purposes
of showing the Premises to prospective buyers or tenants, examining its
condition or use, and of performing Landlord's obligations (pursuant to
Subsection 5.01) and Tenant's obligations (Pursuant to Subsection 5.03).
SECTION 6. ALTERATIONS.
6.01 Without Landlord's prior written consent, Tenant shall make no
alteration of or addition to the Premises, including (without limitation)
painting, wallpapering and carpeting. Landlord shall not unreasonably withhold
such consent.
6.02 Should Landlord elect to give such consent, Tenant shall protect,
indemnify and save Landlord harmless against:
(a) any lien for labor or material furnished, or
(b) any claim which any subcontractor, lesser of equipment, journeyman
or laborer may have under law against an owner of real property for services,
material or machinery, or
(c) any liability for personal injury or damage to property associated
in any way with any alteration or addition.
6.03 Landlord may also require Tenant to furnish security, insurance,
or other assurance as Landlord may reasonably require to protect Landlord
against the liens, claims and liabilities described in Subsection 6.02, and to
assure that the work will be performed in a lawful and workmanlike manner and
with proper materials.
6.04 Upon the termination of this Lease, or when Tenant abandons, quits
or vacates the Premises, whichever shall first occur, any alteration or addition
made pursuant to this Section shall become Landlord's property and shall remain
upon the Premises, all without compensation, allowance or credit to Tenant.
However, Tenant may remove any trade fixtures which Tenant has installed. Trade
fixtures shall not include any items which are part of the mechanical systems on
the Premises, such as, but not limited to, lighting fixtures, exit signs,
humidifiers, air cleaners and smoke detectors. Tenant shall repair any damage to
the Premises caused by Tenant or Tenant's agents in removing any property the
reform.
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SECTION 7. RISK OR LOSS. (INSURANCE)
7.01 Landlord shall bear the risk of loss arising from damage to or
loss of improvements (except Tenant shall pay pro-rata share of insurance as
provided in Subsection 7.05) and Landlord's personal property on the Premises.
7.02 Tenant shall bear the risk of loss arising from damage to or loss
of Tenant's personal property and trade fixtures located on the Premises.
7.03 Tenant shall bear the risk of loss arising from interruption of
business use.
7.04 Tenant shall bear the risk of, and Tenant shall save Landlord
harmless from loss, cost or expense by reason of claims for personal injury and
property damage arising out of Tenant's occupancy of the Premises, whether due
to the fault of Tenant or others, excepting only fault of Landlord. Tenant may
fulfill Tenant's obligations by reason of this Subsection 7.04 by maintaining a
public liability and property damage insurance policy naming Landlord as an
additional insured, in the amount of $1,000,000.00 for each person and
$3,000,000.00 for each occurrence of personal injury and $50,000.00 for property
damage for each occurrence. Tenant shall furnish a certificate of any such
insurance coverage to Landlord.
7.05 Tenant shall pay its pro-rata share of a fire and extended
coverage insurance policy in the proportion that the square footage of the
Premises bears to the total square footage of the building during the term of
this Lease.
7.06 Notwithstanding any provisions to the contrary in this Lease, if
the Premises shall be destroyed or damaged by casualty to such an extent as will
make the Premises unusable for more than seven (7) days for the purpose(s)
described in Subsection 3.01 above, either party (excepting any party whose
fault caused the casualty) has the right to terminate this Lease by giving
notice of such termination to the other party within thirty (30) days after the
date the casualty occurs. Termination of this Lease shall then be effective as
of the date of such casualty. Rent shall be prorated to the date of termination.
7.07 Nothing in this Section 7 shall bar a claim of one party against
the other for injury or damage caused by the fault of the other party.
SECTION 8. WAIVER OF RIGHT OF SUBROGATION.
8.01 Each party has requested of the other a release from liability for
damage to property. Accordingly,
(a) Landlord releases Tenant, to the extent Landlord has insurance
coverage against the hazards to which this release applies, from liability for
loss or damage caused by casualties insured against, notwithstanding any fault
or negligence of Tenant or Tenant's agents; provided, however, that this release
shall be effective only if Landlord's policy or policies of insurance contain a
waiver of right of subrogation clause which provides that a release given by an
insured shall not affect the policy or the right of the named insured to recover
under the policy.
(b) Tenant releases Landlord, to the extent Tenant has insurance
coverage against the hazards to which this release applies, from liability for
loss or damage caused by casualties insured against, notwithstanding any fault
or negligence of Landlord or Landlord's agents; provided, however, that this
release shall be effective only if Tenant's policy or policies of insurance
contain a waiver of right of subrogation clause which provides that a release
given by an insured shall not affect the policy or the right of the named
insured to recover under the policy.
8.02 Each party agrees to have its insurance policy or policies include
a waiver of right of subrogation clause if it is includable without additional
premium. However, if an insurance carrier requires additional premium for a
waiver of right of subrogation clause, then the party in whose favor the release
would operate [Tenant in the case of Subsection 8.01 (a), and Landlord in the
case of Subsection 8.01 (b)] shall bear the cost of such premium. Refusal of a
party to pay such cost on demand excuses the other party from obtaining a waiver
of right of subrogation clause, with the result that the release in favor of the
refusing party Will not be effective.
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SECTION 9. CONDEMNATION.
9.01 If the whole of the Premises, or such portion thereof as will make
the Premises unusable for the purpose(s) described in Subsection 3.01 above, is
condemned and sold for any public use or purpose by any legally constituted
authority, this Lease shall terminate when possession is taken by such
authority; and rent shall be prorated as of the date possession is so taken.
Termination of this Lease under this Subsection 9.01 shall not prejudice the
rights of either Landlord or Tenant to recover compensation for the condemning
authority for any loss or damage caused by such condemnation. Neither Landlord
nor Tenant shall have any rights in or to any award made to the other by the
condemning authority.
SECTION 10. SECURITY DEPOSIT
10.01 An essential element in Landlord's requirement to return the
security deposit to Tenant is that Tenant supply Landlord with a mailing
address, for Tenant, to be used after termination of Tenant's occupancy of the
Premises. Tenant may supply an address, if one is available now, other than the
address of the Premises, in Section 14; however, Tenant may change said address
by notifying Landlord. Landlord is not required to return any of the security
deposit until Tenant supplies a mailing address for Tenant.
10.02 Tenant has deposited, as a requirement of Landlord, with Landlord
the sum of $28,000.00 upon execution of this Real Estate Lease as a Security
Deposit.
10.03 The Security Deposit shall be used only for the following
purposes:
(1) To reimburse Landlord for actual damages to the Premises that are
not the result of ordinary wear and tear.
(2) To pay Landlord for all rent in arrearage under this Lease, and
rent due for premature termination of this Lease by Tenant.
(3) To reimburse Landlord for utility charges, taxes and insurance paid
by Landlord, that are the obligation of Tenant under Section 3.01 of this Lease
and that are unpaid by Tenant.
10.04 Within 45 days after termination of occupancy Landlord shall mail
to Tenant at the address provided by Tenant, a written notice:
(a) containing the estimated cost of repair for each specific item
claimed by the Landlord for damages beyond normal wear and tear and the amounts
(from the security deposit) which Landlord intends to apply toward such costs;
and
(b) listing all other items of Subsection 10.04 against which the
security deposit is to be applied; and
(c) identifying this Lease; and
(d) accompanied by a check or money order, payable to Tenant, in the
amount of the security deposit, minus the amounts to be applied to the items
listed in the notice.
10.05 A termination of occupancy will be deemed to have occurred when
Tenant abandons, quits or vacates the Premises with Landlord's knowledge or when
Landlord reasonably determines that Tenant has moved from the Premises,
regardless of any personal property of Tenant still remaining in the Premises.
Such termination will also be deemed to be delivery of possession.
10.06
(1) Upon a good faith sale to a bona fide purchaser of the Premises,
Landlord shall transfer or assign such security deposit to any new owner of the
Premises, and upon doing so, shall be relieved of any further liability for such
security deposit.
(2) Landlord is relieved of liability under law of this Lease as to
events occurring after written notice to Tenant of the conveyance.
(3) However, for one (1) year after giving the notice Landlord remains
liable to Tenant for the security deposit to which Tenant is entitled unless the
purchaser acknowledges that the purchaser has assumed the liability of the
seller by giving notice to Tenant, and upon conveyance the seller transfers the
security deposit to the purchaser.
(4) The owner of the Premises at the time of the termination of this
Lease is bound by this section.
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SECTION 11. DEFAULTS AND REMEDIES.
11.01 DEFAULTS BY TENANT. A default by Tenant will have occurred under
this Lease IF:
(a) Tenant fails to pay the full amount of any installment of rent on
or before the date when it is due and payable; or
(b) Tenant fails to observe or perform any other provision of this
Lease for thirty (30) days after Landlord has given Tenant notice of the nature
of Tenant's failure; or
(c) Tenant files a petition in bankruptcy or for an arrangement under
any present or future federal or state bankruptcy law, or is adjudicated a
bankrupt or insolvent, or makes an assignment for the benefit of creditors, or
admits in writing Tenant's inability to pay debts as they become due; or
(d) a receiver or trustee of Tenant or of the Premises is appointed
and, in the case of a proceeding brought against Tenant, is not discharged
within ninety (90) days after the appointment, or Tenant consents to or
acquiesces in the appointment; or
(e) Tenant abandons, quits or vacates the Premises; or
(f) any activity of Tenant causes the cancellation of the hazard
insurance coverage on the Premises; or
(g) the interest of Tenant under this Lease is ordered sold under
execution or other legal process.
11.02 REMEDIES OF LANDLORD FOR DEFAULT BY TENANT.
If a default by Tenant has occurred under this Lease and is continuing,
Landlord has the following remedies:
(a) The right to reenter and repossess the Premises, and the right to
remove all persons and property from the Premises, all in a lawful manner.
(b) The right to give Tenant notice of Landlord's termination of this
Lease as of a date specified in the notice, the date to be not earlier than the
date of the notice.
(c) The right to relet the Premises, or any part of it, for the account
of Tenant, for such term or terms and on such conditions as Landlord, in
Landlord's sole discretion, determines. Landlord shall not be responsible or
liable to collect any rent payable upon any reletting.
(d) The right to advance money or make any expenditure to cure any
default of Tenant other than default in payment of rent.
(e) The right to collect from Tenant by any lawful means
(1) any rent due and unpaid,
(2) any deficiency which results from default of Tenant and
the failure of any subletting to give Landlord the rent provided by this Lease,
(3) any money advanced or expenditure made by Landlord
pursuant to Subsection 11.02(d),
(4) any other amount which Tenant owes Landlord under this
Lease, and (5) the attorney's fees, costs, and expenses, recoverable by Landlord
under Section 11.06(e).
11.03 EFFECT OF EXERCISE OF REMEDIES BY LANDLORD.
(a) Upon exercise by Landlord of Landlord's right to reenter and
repossess, or to remove persons and property from, the Premises or upon
termination of this Lease pursuant to Subsection 11.02(b), Tenant and each
person claiming by or through Tenant shall forthwith quit the Premises and
surrender it to Landlord, and Landlord shall be entitled to all remedies at law
or in equity to effect this right. Upon reentry, Landlord shall again have
possession of the Premises as though this Lease had not been made.
(b) Upon the date specified in Landlord's notice of intention to
terminate this Lease, this Lease shall terminate, and Tenant and any person
claiming by or through Tenant shall become a tenant at sufferance.
(c) Within seven (7) days of Tenant's vacation of the Premises, Tenant
shall remove therefrom all of Tenant's personal property. If Tenant fails to so
remove, said property shall be deemed as abandoned by Tenant and shall become
the property of Landlord.
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11.04 DEFAULTS BY LANDLORD.
A default by Landlord will have occurred under this Lease if Landlord
fails to observe or perform any obligation imposed upon Landlord by this Lease
for thirty (30) days after Tenant has given Landlord notice of the nature of
Landlord's failure.
11.05 REMEDIES OF TENANT FOR DEFAULT BY LANDLORD.
If a default by Landlord has occurred under this Lease and is
continuing, Tenant has the following remedies:
(a) The right to bring an action against Landlord to recover such
damages as Tenant may have incurred as a result of Landlord's default.
(b) The right to claim an eviction as provided by law.
(c) the right to terminate this Real Estate Lease and vacate the
Premises, if the Landlord has defaulted under the terms of this Lease and that
default has continued for a period of ninety (90) days after written notice of
default has been delivered to Landlord.
11.06 PROVISIONS APPLICABLE TO DEFAULTS AND REMEDIES.
(a) Failure or omission of either party to exercise any remedy shall
not constitute a waiver, or bar or abridge exercise of a remedy upon any
subsequent default.
(b) Receipt of rent by Landlord with knowledge of default by Tenant
shall not constitute a waiver as to such default or as to a remedy available in
respect of such default.
(c) No right or remedy of either party shall be exclusive of any other
right or remedy, and each and every right or remedy shall be cumulative and in
addition to any other right or remedy given by this Lease or now or hereafter
existing at law of in equity. Termination of this Lease by Landlord shall not
prohibit Landlord from recovering any monies due or to become due pursuant to
Subsection 11. 02.
(d) In addition to any remedies given Landlord by any previous
provision of this Lease, Landlord shall be entitled, to the extent permitted by
law, to injunctive relief in case of any violation, or attempted or threatened
violation, of any of the covenants, agreements or provisions of this Lease.
(e) The Successful party is entitled to recover its reasonable attorney
fees, costs and expenses incurred by reason of exercising its remedies under
this Lease.
(f) If Landlord, without fault, is made a party to any litigation
commenced against Tenant or because of Tenant's activities, and if Tenant, at
Tenant's expense, fails to provide Landlord with legal counsel satisfactory to
Landlord, Tenant shall pay all costs and reasonable attorney fees incurred or
paid by Landlord in connection with such litigation.
(g) Each party shall be entitled to enforce any rights or exercise any
remedies without relief from valuation and appraisement laws.
(h) Prior to termination of occupancy, notice by one party of the
nature of the other party's failure to observe or perform an obligation shall
specify the details of such failure to a reasonable degree so that the party who
has the obligation may reasonably understand the failure. If a default cannot,
with diligence, be cured within the time provided by this Lease, the party whose
obligation it is to cure may give the other party notice of that fact and of
appropriate details and if the party is proceeding with diligence and in good
faith to cure the default, the time within which the failure may be cured shall
be extended for such period as may be needed to complete the curing in diligence
and good faith.
SECTION 12. SUBORDINATION OF LEASE TO EXISTING AND FUTURE MORTGAGES.
12.01 This Lease is subject and subordinate at all times to the lien of
existing and future mortgages upon the Premises, together with any renewals or
extensions thereof, as may have been, or may hereafter be, granted by Landlord.
Although no instrument or act on the part of Tenant shall be necessary to
effectuate such subordination, Tenant shall, nonetheless, execute and deliver
such further instruments subordinating this Lease to the lien of any such
mortgage, as may be desired or requested by a mortgagee of Landlord. Tenant
hereby irrevocably appoints Landlord as Tenant's attorney-in-fact, for the
limited purpose of executing and delivering any such subordination instrument
for and on behalf of Tenant.
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SECTION 13. MISCELLANEOUS.
13.01 Tenant shall not assign, mortgage or encumber this Lease, nor
sublet or permit the Premises or any part thereof to be used by others, without
the prior written consent of Landlord. If this Lease is assigned, or if the
Premises or any part thereof is sublet, or occupied by a party other than
Tenant, Landlord may, after default by Tenant, collect rent from the assignee,
subtenant or occupant as the case may be, and apply the amounts so collected to
the rent herein reserved. No such assignment, subletting occupancy or collection
shall be deemed to be a waiver of this covenant, or the acceptance of the
assignee, subtenant or occupant as a tenant, or a release of Tenant from his
further performance of the covenants contained in this Lease. A consent by
Landlord to an assignment or subletting shall not be construed to relieve Tenant
from again obtaining Landlord's written consent to any subsequent assignment or
subletting.
13.02 A Notice to be given under this Lease shall be in writing and
either delivered in person or mailed, postage prepaid, and addressed: if to
Landlord, at the address applicable according to Subsection 2.03; and if to
Tenant, at the address of the Premises, or at such other address as Tenant shall
designate in writing delivered to Landlord. A notice mailed by registered or
certified mail shall be deemed given on the date of postmark.
13.03 This Lease and its terms, covenants, agreements and provisions
shall be binding upon, and inure to the benefit of, the parties and their
respective heirs, personal representatives, successors and assigns.
13.04 Any change in, or modification or discharge of, this Lease shall
be in writing signed by all persons who at the time are parties to this Lease.
13.05 This Lease and its terms shall be construed under the laws of the
State of Indiana.
IN WITNESS WHEREOF, the parties have signed on this the date first above
written.
9G's+, Inc., an Indiana Corporation ACI Telecentrics, Inc.
By: By:
------------------------------- ------------------------------
Xxxx X. Xxxxxx, President
"Landlord" "Tenant"
This instrument was prepared by Xxxxxxx X. Xxxxxx, Xx., Attorney No. 7042-45,
Xxxxx Xxxxxxxx Xxxxxx, 0000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000.
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