Exhibit 2.4
REVISED AND RESTATED
GAMING EQUIPMENT SALE AGREEMENT
THIS REVISED AND RESTATED GAMING EQUIPMENT AGREEMENT ("AGREEMENT")
is made and entered into as of this ___ day of July, 2001, by and between
PHOENIX LEISURE, INC., a Nevada corporation (the "SELLER"); and ABD GAMING
SUPPLY, a Mississippi corporation, and its designees and assigns (the
"Purchaser").
RECITALS
WHEREAS, Seller owns certain gaming equipment (as more fully
described below the "ASSETS"); and
WHEREAS, the Purchaser is desirous of buying said Assets and Seller
is desirous of selling said Assets, for the consideration and pursuant to the
terms and conditions as set forth below; and
WHEREAS, the Purchaser and Seller are parties to a Gaming Equipment
Sale Agreement (the "PRIOR SALE AGREEMENT"), dated April 18, 2001, and a related
convertible promissory note (the "PRIOR NOTE") of the same date, in the amount
of Four Hundred Thousand Dollars ($400,000)(collectively the "PRIOR
AGREEMENTS").
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
This Agreement shall revise and replace, supersede and replace the
Prior Agreements in their entirety.
1. SALE AND PURCHASE OF ASSETS
1.1 DESCRIPTION OF ASSETS. The Assets consist of gaming equipment
(the "GAMING MACHINES") described on Exhibit A, attached hereto
and incorporated herein by reference. It is agreed and
understood that One Hundred Sixty (160) of the total Six
Hundred (600) Gaming Machines were previously delivered to
Purchaser pursuant to the Prior Sale Agreement (described on
Exhibit A thereto), and Viva Gaming & Resorts, Inc., a Florida
corporation ("VIVA") hereby acknowledges receipt of same to an
address designated by the Purchaser to Seller in writing (the
"DESTINATION"), and agrees that the delivery of the Assets
described herein shall be net of such Assets previously
delivered (also referred to as the "REMAINING ASSETS").
1.2 SALE OF ASSETS. Subject to the terms and conditions hereinafter
set forth, and exchanged for the consideration described
herein, Seller shall sell, transfer, assign and deliver to
Purchaser and Purchaser shall purchase and acquire from Seller
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on the Closing Date (as such term is hereinafter defined), all
of Seller's right, title and interest in and to the Assets.
1.3. USE OF LICENSED INTERMEDIARY/TRUE PARTY IN INTEREST. It is
specifically agreed and understood that Purchaser is a licensed
gaming distributor under the laws of the State of Mississippi,
and is acting solely in an intermediary capacity with respect
to the purchase of the Assets. Accordingly, Purchaser shall,
immediately upon the effectiveness of this Agreement, transfer
the Remaining Assets to Viva, and that for the purposes of the
payment provisions herein, Viva shall be an intended
beneficiary of this Agreement, and an express designee and
assign of the Purchaser, and, that therefore, Viva shall be
considered the real party in interest receiving the benefit of
this Agreement, and shall be delivering the Purchase Price to
the Seller in consideration therefor.
1.4 PURCHASE PRICE. The total purchase price (the "PURCHASE PRICE")
to be paid by the Purchaser (by its designee and assigns, Viva)
to the Seller for all of the Assets shall be equal to the sum
of One Million Five Hundred Thousand Dollars ($1,500,000).
1.5 MANNER OF PAYMENT OF PURCHASE PRICE. The Purchase Price shall
be paid by delivery by Viva to Seller at Closing (defined
below): (i) a convertible promissory note in the amount of Five
Hundred Thousand Dollars ($500,000), with a one (1) year
maturity, convertible at any time prior to maturity into Five
Hundred Thousand 500,000 shares of Viva's common stock ("COMMON
STOCK"), par value $0.001 per share (the "CONVERSION SHARES")
attached hereto as Exhibit B (the "NOTE"), and (ii) One Million
(1,000,000) shares of Viva's common stock (the "PURCHASED
SHARES"). The Conversion Shares and the Purchased Shares are
collectively referred to as the "SHARES."
1.6 CLOSING DATE AND PLACE. The Closing shall take place
concurrently with the execution of this Agreement and delivery
of the Note and the Purchased Shares by Viva to Seller, at the
offices of the Seller or attorney of the Seller, located in Las
Vegas, Nevada, or by mail. (The date of Closing is sometimes
referred to herein as the "CLOSING DATE.")
1.7 DELIVERY OF ASSETS. Seller shall ship the Remaining Assets to
the Destination. The cost of such shipping shall be paid by the
Seller, provided, however, that upon the delivery of the Assets
to the shipping carrier, Seller shall have no further liability
or obligation for the Assets (including, without limitation,
the condition of the Assets and the ultimate delivery of the
Assets to the Destination). By its execution, Purchaser and
Viva specifically acknowledge and agree that while Seller shall
pay the cost of shipping the Assets to Viva at the Destination,
Seller shall have no liability, obligation, or other
responsibility whatsoever with respect to the transport of the
Assets to the Destination, and Viva agrees to be solely
responsible for the Assets during shipping and upon arrival at
the Destination.
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1.8 CONDITION OF THE ASSETS. The Assets shall be in reasonable
working order but without any further or continuing guaranty or
warranty, either express or implied by the Seller, as to the
condition thereof. Viva shall have thirty (30) days after its
receipt of the Assets at the Destination to notify Seller that
the Assets are not in reasonable working order ("NOTICE
PERIOD") together with a reasonably detailed explanation of the
defects ("DEFECT NOTICE"). If Viva has not so notified Seller
within the Notice Period, the Assets shall be considered to be
in reasonable working order for the purposes of this Agreement.
If a Defect Notice has been given to Seller by Viva within the
Notice Period, Seller shall have the right to (a) repair the
Asset and re-deliver, (b) replace the Asset and re-deliver, or
(c) deduct the prorata portion of the value of the Asset
($2,500 per machine) from the balance due on the Note.
Re-delivery of a repaired Asset or a replaced Asset shall
recommence the Notice Period with respect to such Asset. Seller
agrees to provide to Viva technical support and maintenance for
the Assets once they commence gaming activities in the Grandsur
Casino located in the Grandsur Mall in Mexico City, Mexico by
Seller, under the terms of a Technical Services Agreement to be
executed at a later date between parties.
2. REPRESENTATIONS AND WARRANTIES OF SELLER
The Seller represents and warrants to Purchaser and Viva that the
following representations and warranties are true and correct on the date
hereof, and will be so on the Closing Date.
2.1. POWER AND AUTHORITY; AUTHORIZATION AND VALIDITY. The Seller has
full power and authority to execute, deliver, and perform its
obligations under this Agreement and all other agreements and
documents it is or will be executing in connection with this
Agreement and the transactions contemplated hereby. This
Agreement and each other agreement contemplated by this
Agreement have been or will be duly executed and delivered by
the Seller and constitute or will constitute legal, valid, and
binding obligations of the Seller, enforceable in accordance
with their terms, except as may be limited by applicable
bankruptcy, insolvency, or similar laws affecting creditors'
rights generally or the availability of equitable remedies.
2.2. ORGANIZATION AND GOOD STANDING. The Seller is a corporation
validly existing under the laws of Nevada.
2.3. TITLE. The Seller has good and marketable title to the
Remaining Assets and there are no liens thereon which will
interfere with Viva's use and enjoyment of said Assets.
2.4 INVESTMENT.
2.4.1 PURCHASE ENTIRELY FOR OWN ACCOUNT. The Shares to be
received by the Seller pursuant to the terms hereof
will be acquired for investment for the Seller's own
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account, not as a nominee or agent, and not with a view
to the resale or distribution of any part thereof. The
Seller has no present intention of selling, granting
any participation in, or otherwise distributing the
Shares acquired by the Seller. The Seller has no
contract, undertaking, agreement or arrangement with
any person to sell or transfer, or grant any
participation to such person or to any third person,
with respect to any of the Shares to be acquired by the
Seller.
2.4.2 ACCESS TO INFORMATION, EXPERIENCE, ETC
(a) The Seller has been furnished access to the
business records of the Company and such
additional information and documents as the
Investor has requested and has been afforded an
opportunity to ask questions of, and receive
answers from, representatives of the Company
concerning the terms and conditions of this
Agreement, the purchase of the Shares, the
business, operations, market potential,
capitalization, financial condition and prospects
of the Company, and all other matters deemed
relevant to such Investor.
(b) The Seller acknowledges that it has had an
opportunity to evaluate all information regarding
the Company as it has deemed necessary or
desirable in connection with the transactions
contemplated by this Agreement, has independently
evaluated the transactions contemplated by this
Agreement and has reached its own decision to
enter into this Agreement.
2.4.3 RESTRICTED SECURITIES. The Seller understands that the
Shares to be acquired by the Seller have not been
registered under the Securities Act or the laws of any
state and may not be sold or transferred, or otherwise
disposed of, without registration under the Securities
Act and applicable state securities laws or an
exemption therefrom. The Seller will sell or transfer,
or otherwise dispose of, the Shares to be acquired by
the Seller only in a manner consistent with the
representations and warranties set forth herein and any
applicable federal and state securities laws.
2.4.4 LEGENDS. It is understood that the certificates
evidencing the Shares may bear one or all of the
following legends:
(a) THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO
THE SECURITIES EVIDENCED BY THIS CERTIFICATE,
FILED AND MADE EFFECTIVE UNDER THE SECURITIES ACT
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OF 1933, AS AMENDED, AND SUCH APPLICABLE STATE
SECURITIES LAWS, OR UNLESS THE COMPANY RECEIVES
AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER
SUCH ACT AND SUCH APPLICABLE STATE SECURITIES
LAWS IS NOT REQUIRED.
3. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser (including Viva) represents and warrants to Seller,
knowing and intending that Seller shall rely thereon in entering into this
Agreement and performing the obligations on its part to be performed hereunder,
that the following representations and warranties are true and correct on the
date hereof, and will be so on the Closing Date.
3.1. POWER AND AUTHORITY; AUTHORIZATION AND VALIDITY. The
Purchaser has full power and authority to execute,
deliver, and perform its obligations under this
Agreement and all other agreements and documents it is
or will be executing in connection with this Agreement
and the transactions contemplated hereby. This Agreement
and each other agreement contemplated by this Agreement
(including the Note) have been or will be duly executed
and delivered by the Purchaser and constitutes or will
constitute the legal, valid, and binding obligations of
the Purchaser, enforceable in accordance with their
terms, except as may be limited by applicable
bankruptcy, insolvency, or similar laws affecting
creditors' rights generally or the availability of
equitable remedies.
3.2 ORGANIZATION AND GOOD STANDING. Purchaser is duly
organized and in good standing in its jurisdiction of
formation, and is qualified to do business where it is
required to be so qualified.
3.3 BINDING OBLIGATION. The execution and delivery of this
Agreement and the other instruments and agreements
contemplated hereby by Purchaser and the performance by
Purchaser of the transactions contemplated by this
Agreement have been duly authorized by all required
corporate action of Purchaser and will not violate
Purchaser's articles of incorporation or bylaws, or any
judgment, indenture, agreement or contract to which
Purchaser is a party or by which Purchaser is bound. The
Agreement constitutes the valid and legally binding
obligation of Purchaser, enforceable in accordance with
its terms and conditions, except as such enforceability
may be limited by applicable bankruptcy, insolvency or
similar laws affecting the enforcement of creditors
rights generally and by general principals of equity.
3.4 AUTHORIZATION. The Shares are duly authorized and, when
delivered in compliance with this Agreement, or pursuant
to the Convertible Note, as the case may be, will be
duly and validly issued and outstanding, fully paid and
nonassessable, and will be free of any liens,
encumbrances and restrictions whatsoever.
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3.5 COMPLIANCE WITH SECURITIES LAWS. Viva has issued the
Purchased Shares, and will issue the Conversion Shares,
in compliance with all applicable state and federal laws
regulating the offer, sale and issuance of securities.
3.6 AVAILABILITY OF SHARES. Viva shall at all times reserve
and maintain a sufficient number of its authorized but
unissued Common Stock to satisfy the conversion feature
of the Convertible Note and deliver the Conversion
Shares.
3.7 RULE 144. Viva has and shall continue to meet all the
prerequisites of Rule 144 of the Securities Act such
that Purchaser shall be entitled to rely on the "Safe
Harbor" provisions of same if and when it re-sells the
Shares.
4. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATION.
Notwithstanding any other provision of this Agreement to the
contrary, Purchaser's obligations hereunder are subject to, and Purchaser shall
have no obligation to consummate the transactions contemplated hereunder unless
all of the following conditions are satisfied (provided that any of the same may
be waived in writing by Purchaser). Unless otherwise expressly provided
elsewhere in this Agreement, no failure of any of the following conditions shall
constitute a breach or default hereunder on the part of the Seller.
4.1 REPRESENTATIONS AND WARRANTIES. Seller's representations
and warranties contained herein and in any certificate
or document delivered to Purchaser pursuant hereto shall
be deemed to have been made again at and as of the date
of the Closing and shall then be true and correct in all
material respects.
4.2 PERFORMANCE. Seller shall have performed and complied
with all covenants and agreements that Seller is
required to perform or with which it is required to
comply prior to or at the Closing.
4.3 NO LIENS. The Assets shall be free and clear of all
liens and encumbrances, except liens that are terminated
simultaneously with the Closing.
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5. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS.
Seller's obligations hereunder are subject to the fulfillment prior
to or at the Closing of each of the following conditions and Seller shall have
no obligation to consummate the transactions contemplated hereunder unless all
of the following conditions are satisfied (provided that any of the same (except
the Gaming Laws, as defined below) may be waived in writing by Seller):
5.1 GAMING LAWS. This Agreement and Seller's obligations
hereunder, are expressly subject to all applicable
gaming laws, rules and regulations (the "GAMING LAWS"),
including, without limitation, the laws of the States of
Mississippi, Nevada and Washington. Any action herein in
contravention of such laws, rules and regulations shall
be null and void AB INITIO.
5.2 REPRESENTATIONS AND WARRANTIES. The Purchaser's
representations and warranties contained herein and in
any certificate or document delivered to Seller pursuant
hereto shall be deemed to have been made again at and as
of the date of the Closing and shall then be true and
correct in all material respects.
5.3 PERFORMANCE. Purchaser shall have performed and complied
with all covenants and agreements that Purchaser is
required to perform or with which it is required to
comply prior to or at the Closing.
5.4 PURCHASE PRICE. Viva shall deliver the Purchase Price in
the form and on or before the date provided for herein.
6. INDEMNIFICATION
6.1 INDEMNIFICATION BY SELLER. From and after completion of
the Closing, Seller will indemnify, defend, and hold
harmless Purchaser and Viva and its shareholders,
directors and officers from and against:
(a) all damages to Purchaser and Viva resulting
from or arising out of (A) any breach of any
representation or warranty made by Seller in
this Agreement; or (B) any act or omission
of Seller with respect to, or any event or
circumstance related to, the ownership of
the Assets, which occurred or existed prior
to or at the Closing Date; and
(b) all claims, actions, suits, proceedings,
demands, judgments, assessments, fines,
interest, penalties, costs and expenses
(including settlement costs and reasonable
legal, account, experts and other fees,
costs and expenses) resulting from the
foregoing.
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6.2 INDEMNIFICATION BY PURCHASER AND VIVA. From and after
the completion of the Closing, Purchaser will indemnify,
defend and hold harmless Seller, and Seller's
shareholders, directors, officers, employees, agents,
successors and assigns, from and against:
(a) all damages to Seller or any such other
indemnified person resulting from or arising
out of (i) any breach of any representation
or warranty made by Purchaser in this
Agreement; (ii) the breach of any covenant,
agreement, or obligation of Purchaser
contained in this Agreement, (iii) any act
or omission of Purchaser with respect to, or
any event or circumstance related to, the
ownership or operation of the Assets, which
act, omission, event or circumstance occurs
after the Closing Date, or (iv) the failure
by Purchaser to perform any of its
obligations hereunder and with regard to the
Assets; and
(b) all claims, actions, suits, proceedings,
demands, judgments, assessments, fines,
interest, penalties, costs and expenses
(including, without limitation, settlement
costs and reasonable legal, accounting,
experts and other fees, costs and expenses)
incident or relating to or resulting from
any of the foregoing.
6.3 PROCEDURES; THIRD-PARTY CLAIMS.
(a) If a claim to which the indemnification
provisions of this Article 6 apply arises
out of any suit, claim or other assertion of
liability by a third party (hereinafter
referred to collectively as the "CLAIMS" and
individually as a "CLAIM"), the indemnified
party agrees to promptly give written notice
to the indemnifying party of the existence
of such claim.
(b) The obligations and liabilities of the
parties hereto with regard to their
respective indemnities hereunder resulting
from any Claim shall be subject to the
following additional terms and conditions:
(i) The indemnifying party shall have the
right to undertake, by counsel or
other representatives of its own
choosing, the defense of or opposition
to such Claim;
(ii) In the event that the indemnifying
party shall elect not to undertake
such defense or opposition, or within
fourteen (14) days after notice of any
such Claim the indemnified party shall
fail to defend or oppose such Claim,
the indemnified party (upon further
written notice to the indemnifying
party) shall have the right to
undertake the defense, opposition,
compromise or settlement of such
Claim, by counsel or other
representatives of its own choosing,
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on behalf of and for the account and
risk of the indemnifying party
(subject to the right of the
indemnifying party to assume defense
of or opposition to such Claim at any
time prior to settlement, compromise
or final determination thereof).
(iii) Anything in this Article 6 to the
contrary notwithstanding: (A) if there
is a reasonable probability that a
Claim may materially and adversely
affect the indemnified party, the
indemnified party shall have the
right, at its own cost and expense, to
participate in the defense,
opposition, compromise or settlement
of the Claim; (B) the indemnifying
party shall not, without the
indemnified party's written consent,
settle or compromise any Claim or
consent to entry of any judgment which
does not include as an unconditional
term thereof the release of the
indemnified party by the claimant or
the plaintiff to such Claim from all
liability regarding said Claim, and
(C) in the event that the indemnifying
party undertakes defense of or
opposition to any Claim, the
indemnified party, by counsel or other
representative of its own choosing,
and at its sole cost and expense,
shall have the right to consult with
the indemnifying party and its counsel
or other representatives concerning
such Claim and the indemnifying party
and the indemnified party, and their
respective counsel or other
representatives, shall cooperate in
good faith with respect to such Claim.
(iv) No undertaking of defense or
opposition to a Claim shall be
construed as an acknowledgment by such
party that it is liable to the party
claiming indemnification with respect
to such Claim or other similar Claims.
6.4 CERTAIN LIMITATIONS ON INDEMNITY.
(a) Notwithstanding the abovesaid, no claims shall be
brought against either party hereunder and/or
pursuant to the indemnification provisions of this
Agreement (except as the result of the intentional
misconduct or fraud of a party) until the
aggregate amount of such claims or losses exceeds
the total of $15,000, provided that if such
aggregate claims and losses by such party exceed
$15,000, Purchaser, Seller or the other
indemnified parties hereunder, as the case may be,
may seek indemnification hereunder for the entire
amount of all such claims and losses (and shall
not be limited to seeking indemnification for the
claims and losses in excess of up to the amount of
the Purchase Price hereunder).
(b) Except for losses, claims or liabilities arising
due to the intentional or gross misconduct and/or
fraudulent action of the Seller with regard to
which there will be no time limitation pursuant to
this Section 6.4 or otherwise, any claim, loss or
liability by the Purchaser for breaches of the
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representations and warranties made by Seller in
this Agreement must be first made by Purchaser no
later than 1 year from the date of the Closing.
7. NOTICES
All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given when either
personally served or mailed by certified or registered mail, return receipt
requested, at the addresses set forth on the signature page of this Agreement or
to such other address or to such other persons as Purchaser or Seller shall have
last designated by written notice to the other party hereto.
8. MISCELLANEOUS.
(a) BENEFITS. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective
successors, heirs, designees and/or assigns.
(b) FURTHER ASSURANCES. The parties hereto agree and acknowledge
that they shall execute and deliver any and all additional
writings, instruments, and other documents contemplated
hereby or referred to herein, and shall take such further
action as is reasonably required in order to effectuate the
terms and conditions of this Agreement.
(c) GOVERNING LAW. This Agreement shall be governed by and
construed according to the laws of the State of Nevada,
without regard to its conflicts of law principles.
(d) ARTICLE HEADINGS. The article headings contained in this
Agreement are for reference purposes only, and shall not
affect the meaning or interpretation of this Agreement or
any provision hereof.
(e) COSTS AND EXPENSES. Purchaser and Seller shall each pay its
own costs and expenses, including attorneys' fees, relating
to the execution and delivery of this Agreement and the
consummation of all transactions contemplated herein.
(f) ASSIGNMENT. Seller may assign its rights and obligations
under this Agreement to an entity under common control with
and/or affiliated with or a partner or joint venturer with
the Seller. Except as set forth above, neither Seller nor
Purchaser may assign this Agreement or any rights or
obligations hereunder without the prior consent of the other
party. Any such consents required hereunder shall not be
unreasonably withheld or delayed, provided the assignee
agrees to perform all of the obligations of the assignor and
the assignor is not relieved of its obligations hereunder.
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(g) MODIFICATION. This Agreement shall not be amended, modified
or supplemented at any time except by a writing executed by
the parties hereto. No amendment, supplement or termination
of this Agreement shall affect or impair any rights or
obligations that have heretofore matured hereunder.
(h) CONFIDENTIALITY. The parties (including their respective
designees and/or assigns) will keep the existence and terms
of this Agreement, including without limitation, the
Purchase Price, confidential and will not disclose the same
to any person, except for disclosures required by law,
disclosures on tax returns, disclosures to employees of
Purchaser or Seller who have a need to know such
information, and to attorneys, accountants and similar
advisors of Purchaser or Seller.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused these presents to
be signed sealed and delivered as of the date first above written.
PURCHASER:
: ABD GAMING SUPPLY, A MISSISSIPPI CORPORATION
By:
-----------------------------------------
Title:
Address: 0000 X. Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention:
--------------------------
PURCHASER DESIGNEE - VIVA:
VIVA GAMING & RESORTS INC., A FLORIDA
CORPORATION
By:
------------------------------------------
Title:
Address: 0000 X. Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention:
--------------------
SELLER:
PHOENIX LEISURE, INC., A NEVADA CORPORATION
By:
------------------------------------------
Title:
Address: 0000 X. Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention:
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