EXHIBIT 10.13
LEASE AMENDMENT
In consideration of the rents and covenants set forth herein and in the Lease
(as defined below), Landlord and Tenant hereby amend the Lease.
BASIC LEASE PROVISIONS
A. DATE: The date of this Lease Amendment is August 19, 2002.
B. LEASE: That certain lease dated as of July 2, 2001.
X. XXXXXXXX: Xxxx X. Xxxxx and Xxxxxxx X. Xxxxx as Trustees of the Xxxx X.
and Xxxxxxx X. Xxxxx Family Trust.
D. TENANT: The Xxxxxxx Xxxxxx Corporation, a Delaware corporation.
E. PREMISES: 0000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx; see Exhibit "A" of the
Lease for legal description.
ARTICLE 1
TERM
Landlord and Tenant hereby agree that the Term for the Premises shall be
extended, and that the Lease expiration shall be midnight, August 19, 2022.
ARTICLE 2
EFFECT
Other than as set forth above, the Lease shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have set their hands the day and
year first above written.
TENANT:
The Xxxxxxx Xxxxxx Corporation,
a Delaware corporation
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx, President/CEO
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LANDLORD:
Xxxx X. Xxxxx and Xxxxxxx X. Xxxxx as
Trustees of the Xxxx X. and Xxxxxxx X. Xxxxx
1989 Family Trust
By: /s/ XXXX X. XXXXX
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Xxxx X. Xxxxx
By: /s/ XXXXXXX X. XXXXX
--------------------------------------
Xxxxxxx X. Xxxxx
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LEASE AGREEMENT
In consideration of the rents and covenants hereinafter set forth, Landlord
hereby leases and demises to Tenant and Tenant hereby leases and takes from
Landlord the "Premises," hereinafter described in the terms and conditions set
forth in the Lease Agreement, hereinafter called "this Lease."
BASIC LEASE PROVISIONS
The words and figures set forth in Paragraphs A to K, both inclusive, are part
of this Lease wherever appropriate reference is made thereto, unless expressly
modified elsewhere in the Lease.
A. DATE OF EXECUTION: As of the 2nd of July, 2001.
X. XXXXXXXX: Xxxx X. Xxxxx and Xxxxxxx X. Xxxxx as Trustees of the Xxxx X.
and Xxxxxxx X. Xxxxx 1989 Family Trust.
C. TENANT: The Xxxxxxx Xxxxxx Corporation, a Delaware corporation.
D. PREMISES: 0000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx; see Exhibit "A" attached
hereto and incorporated herein.
E. TERM: Fifteen (15) years.
F. LEASE COMMENCEMENT DATE: This lease shall commence on January 1, 2002, and
expire at midnight on December 31, 2016.
G. BASE RENT: Twenty-seven thousand one hundred seventy-two and 14/100
Dollars ($27,172.14) per month during the first year of the Term, plus
applicable taxes plus expenses as outlined in the lease agreement.
H. USE OF PREMISES: EDUCATIONAL
I. SECURITY DEPOSIT: NONE
X. XXXXXXXX'S ADDRESS FOR RENT AND NOTICES:
Xxxx X. Xxxxx and Xxxxxxx X. Xxxxx as Trustees of the Xxxx X. and Xxxxxxx
X. Xxxxx
1989 Family Trust
% Xxxxxx Commercial
0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
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X. XXXXXX'S ADDRESS FOR NOTICE:
Xxxxxx X. Xxxxxxx, President
The Xxxxxxx Xxxxxx Corporation
00000 Xxxxx Xxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
ARTICLE 1
LEASED PREMISES
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord,
that certain Xxxxxxxx described in Paragraph D of the Basic Lease Provisions.
ARTICLE 2
TERM
The term of this Lease shall be for the period set forth in Paragraph E of
the Basic Lease Provisions. Notwithstanding the commencement and expiration date
set forth in Paragraph F of the Basic Lease Provisions, if for any reason
Landlord cannot deliver possession of the Premises to Tenant on said date,
Landlord shall not be subject to any liability therefore, nor shall such failure
affect the validity of this Lease or the obligations of Tenant hereunder, but
the commencement date and expiration date of this Lease shall be extended the
same period of time until Landlord delivers possession of the Premises to
Tenant. If Tenant occupies the Premises prior to said commencement date, said
occupancy shall be subject to all the provisions hereof, such occupancy shall
not advance the expiration date, and Tenant shall pay rent for such period at
the initial monthly rate set forth in Paragraph G of the Basic Lease Provisions.
ARTICLE 3
RENT
Tenant shall pay in advance to Landlord as rent for the Premises without
notice, demand, deduction or any setoff whatsoever at the address of Landlord as
set forth in Paragraph J of the Basic Lease Provisions or such other address as
may be specified by Landlord, the following amounts:
A. Minimum rent (herein called "Minimum Rent") in the total sum and in the
manner set forth in Paragraph G of the Basic Lease Provisions together with all
applicable taxes as set forth in Article 11 herein, payable monthly on the first
day of each month during the term hereof, with adjustments for fractional
months. Said rent shall commence on the date set forth in Paragraph F of the
Basic Lease Provisions.
B. The annual Minimum Rent shall be adjusted and increased as of the first
day of January of each lease year (hereinafter the "Adjustment Date") commencing
the first of January following the Lease Commencement Date, as set forth in
Paragraph F of the Basic Lease Provisions, in the following manner:
i. For the first five (5) years of the Term, the annual rent shall
be:
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1/1/02-12/31/02 $5.99 psf $326,065.65 / 12 = 27,172.14
1/1/03-12/31/03 6.21 psf 338.041.35 / 12 = 28,170.11
1/1/04-12/31/04 6.43 psf 350,017.05 / 12 = 29,168.09
1/1/05-12/31/05 6.67 psf 363.081.45 / 12 = 30,256.79
1/1/06-12/31/06 8.83 psf 480,661.05 / 12 = 40,055.09
ii. After the first five (5) years of the Term, the annual rent
shall be increased by the greater of (a) an amount equal to 4 percent of the
annual rent for the immediately preceding lease year, or (b) the percentage of
increase in the Consumer Price Index ("CPI"). The CPI is defined as the Consumer
Price Index of the Bureau of Labor Statistics of the Department of Labor for All
Urban Consumers, (1967=100), "All Items," for the city nearest the location of
the Premises. The CPI increase shall be calculated by multiplying the rent for
the prior year by a fraction, the numerator of which shall be the CPI of the
calendar month and year in which the adjustment is to take effect, and the
denominator of which shall be the CPI for the same calendar month and year
prior. In the event the compilation and/or publication of the Consumer Price
Index shall be transferred to any other governmental department or bureau or
agency, or shall be discontinued, then the index most nearly the same as the CPI
shall be used to make the increase calculation. In the event that Landlord and
Tenant cannot agree on such alternative index, then the matter shall be
submitted for decision to the American Arbitration Association in the County in
which the Premises are located, in accordance with the then rules of said
association and the decision of the arbitrators shall be binding upon the
parties, notwithstanding one party failing to appear after due notice of the
proceeding. The cost of said Arbitrators shall be paid equally by Landlord and
Xxxxxx. Until the arbitration is settled, the Tenant shall continue to pay the
rent at the rate determined by the 4 percent increase calculation set forth
above. Within five (5) days following the date on which the increase is
determined, if it is greater than the 4 percent calculation, the Tenant shall
make such payment to the Landlord as will bring the increased rent current,
commencing with the effective date of such increase through the date of any rent
installments then due. Thereafter the rent shall be paid at the increased rate.
Such adjusted annual rent shall be payable monthly, as provided herein,
beginning with the Adjustment Date.
C. The term "lease year" as used herein shall be deemed to mean a period
of twelve (12) consecutive months commencing with the 1st day of January and
ending with the 31st day of December of each year, both dates inclusive,
provided that the first "lease year" shall begin with the date the term of this
Lease commences and shall end on the succeeding December 31st, and except that
the last "lease year" shall end on the last day of the lease term.
ARTICLE 4
POSSESSION
Possession of the Premises shall be delivered to Tenant on an AS IS
condition.
ARTICLE 5
BUSINESS USE
The Premises shall be used and occupied by Tenant only for the purpose set
forth in Paragraph H of the Basic Lease Provisions, and for no other purpose.
Tenant shall, at its sole cost, comply with and shall faithfully observe all the
requirements of municipal, state, and
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federal authorities now in force, or that hereafter may be in force, pertaining
to the use of the Premises as well as the requirements and regulations of the
Board of Fire Underwriters, Landlord's and/or Tenant's insurance companies, and
other organizations establishing insurance rates.
ARTICLE 6
SIGNS
Tenant may place any sign on the Premises that is consistent with the
regulations of Orange County and the deed restrictions of Orlando Central Park.
Notwithstanding the above, Tenant shall upon request of Landlord immediately
remove any exterior or interior sign, advertisement, declaration, lettering or
notice that Tenant may hereafter place or permit to be placed in, upon, above,
or about the Premises and that Landlord reasonably deems objectionable or
offensive, and if Tenant fails or refuses so to do Landlord may, at Xxxxxx's
sole cost, enter upon the Premises and remove the same.
ARTICLE 7
MAINTENANCE AND SANITATION
A. Tenant shall repair any damage to the Premises caused by Tenant or by
any of Tenant's employees, agents, customers, invitees or licensees, other than
from ordinary wear. Tenant shall maintain the interior of the Premises and all
doors, windows, heating, cooling and mechanical equipment and plate glass, and
Landlord agrees whenever possible to extend to Tenant the benefit of any
enforceable manufacturer's warranties on such equipment. If Xxxxxx refuses or
neglects to make repairs and/or maintain the Premises, or any part thereof, in a
manner reasonably satisfactory to Landlord, Landlord shall have the right, upon
giving tenant reasonable written notice of its election to do so, to make such
repairs or perform such maintenance on behalf of and for the account of Tenant.
In such event such work shall be paid for by Tenant promptly upon receipt of a
bill therefor. Tenant shall not decorate or paint the exterior of the Premises,
or any part thereof, except in the manner and color approved by Landlord.
Landlord may, at its option, enter into a maintenance agreement for the
maintenance of any heating and air conditioning units serving the Premises. The
cost of any such agreement attributable to the Premises shall be paid by Tenant
promptly upon receipt of a bill therefor.
B. Tenant shall also maintain the roof, exterior walls, all aspects of the
exterior of the building, parking lot, as well as all aspects of the property
(including but not limited to sidewalks, landscaping, drainage, etc.). Landlord
shall not in any way be liable to Tenant for failure to maintain the Premises or
make repairs.
C. Tenant shall provide and maintain trash receptacles, with covers
thereon, about the Premises in which to place any trash, and cause such trash to
be removed from the area as often as required to maintain a sanitary condition
but in no instance less than twice weekly.
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ARTICLE 8
ALTERATION, REPAIR AND LIENS
A. Tenant shall not make any alterations or additions upon the Premises
without the prior written consent of Landlord. Any alterations or additions that
are approved will be made by the Tenant at its own expense.
B. If any liens should be asserted against the Premises arising out of
work performed or materials furnished upon or at the instance of Tenant, Tenant
shall, within fifteen (15) days thereafter, cause said lien to be discharged
either by paying the same or by recording a surety bond in accordance with the
provisions of Chapter 713, Florida Statutes.
C. Tenant shall be solely responsible for all repair, modification,
alteration or reconstruction required to be made to the Premises as a result of
any governmental act, law, rule, or regulation, including but not limited to the
Americans With Disabilities Act.
ARTICLE 9
UTILITY SERVICES
Tenant shall pay for all utilities and services that may be furnished to
or used in or about the Premises and shall keep the same free and clear of any
lien or encumbrance of any kind whatsoever created by Xxxxxx's acts or
omissions. Landlord shall not be liable for any failure or interruption of any
utility service being furnished to the Premises and no such failure or
interruption shall entitle Tenant to terminate this Lease or xxxxx any payment
of rent.
ARTICLE 10
INDEMNITY AND INSURANCE
Tenant covenants that Landlord shall not be liable for any damage or
liability of any kind or for any injury to or death of persons or damage to
property of tenant or any other person during the term of this Lease, from any
cause whatsoever, by reason of the use, occupancy and enjoyment of the Premises
by Tenant or any person thereon or holding under said Xxxxxx, and that Tenant
will indemnify and save harmless Landlord from all liability whatsoever on
account of any such damage or injury and from all liens, claims, and demands
arising out of the use of the Premises and its facilities or any repairs or
alterations that Tenant may make upon the Premises, but Tenant shall not be
liable for damage or injury occasioned by the gross negligence or intentional
acts of Landlord and its designated agents, servants, or employees, unless
covered by insurance Tenant is required to provide. This obligation to indemnify
shall include reasonable attorney's fees and investigation costs and all other
reasonable costs, expenses, and liabilities from the first notice that any claim
or demand is to be made or may be made.
Landlord and Tenant hereby waive any rights each may have against the
other on account of any loss or damage occasioned to Landlord or Tenant, as the
case may be, their respective property, the Premises, or its contents, arising
from any risk generally covered by fire and extended coverage insurance policies
then in use in the State of Florida, and the parties each, on behalf of their
respective insurance companies insuring the property of either Landlord or
Tenant against any such loss, waive any right of subrogation that such companies
may have against Landlord or Tenant, as the case may be. In the event that the
insurance company of Tenant does not
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waive the right of subrogation against Landlord and its insurance company,
Tenant shall (i) maintain during the term of this Lease, fire legal liability
coverage with respect to the Premises, and (ii) shall pay to Landlord upon
demand, Xxxxxxxx's cost incurred in securing fire legal liability insurance
protecting Landlord in the event of the destruction of Tenant's property.
From and after the date of delivery of the Premises to Tenant, Tenant
shall maintain, at its expense, the following types of insurance:
(i) Public Liability Insurance. Comprehensive general public
liability insurance (including personal injury,
contractual, products and completed operations, and
automobile liability including non-owned and hired) with
limits of not less than One Million Dollars
($1,000,000.00) per occurrence insuring against any and
all liability of the insured with respect to the
Premises or arising out of the maintenance, use, or
occupancy thereof. All insurance shall specifically
insure the performance by Tenant of the indemnity
agreement in this Article 10 contained. Said insurance
shall be the primary insurance as respects to the
Landlord and not participating with any other available
insurance. In no event shall the limits of said policies
be considered as limiting the liability of Tenant under
this Lease.
(ii) Fire and Extended Coverage Insurance. Tenant shall
provide and pay for fire and extended coverage insurance
insuring the building and improvements to the Premises.
Such fire and extended coverage insurance shall be
obtained by Tenant in an amount equal to at least one
hundred percent (100%) of the full insurable value of
the building and improvements. Any and all such policies
shall show Landlord as an additional insured and sole
loss payee.
(iii) Insurance of Personal Property. Tenant shall at all
times during the Term hereof, and at its cost and
expense, maintain in effect policies of insurance
covering (i) its fixtures and equipment located on the
Premises, in an amount not less than one hundred percent
(100%) of their replacement value, providing protection
against any peril included within the classification
"Fire and Extended Coverage," together with insurance
against sprinkler damage, vandalism, and malicious
mischief, and (ii) all plate glass on the Premises. The
proceeds of such insurance, so long as this Lease
remains in effect, shall be used to repair or replace
the fixtures, equipment and plate glass so insured.
(iv) Business Interruption Insurance. Tenant shall carry
business interruption insurance in an amount sufficient
to pay all rent amounts coming due hereunder.
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All policies of insurance to be provided by Tenant hereunder shall be
issued by insurance companies acceptable to Landlord and qualified to do
business in the State of Florida, and shall be issued in the names of Landlord
and Tenant, for the mutual joint benefit and protection of Landlord and Tenant,
and executed copies of such policies of insurance or certificates thereof shall
be delivered to Landlord within ten (10) days after delivery of possession of
the Premises to Tenant and thereafter new policies or renewal certificates
within thirty (30) days prior to the expiration of the term of each such policy.
All public liability and property damage policies shall contain a provision that
Landlord, although named as an insured, shall nevertheless be entitled to
recovery under said policies for any loss occasioned to it, its servants, agents
and employees by reason of the negligence or intended acts of Tenant. As often
as any such policy shall expire or terminate, renewal or additional policies
shall be procured and maintained by Tenant in like manner and to like extent.
All policies of insurance delivered to Landlord must contain a provision that
the company writing said policy will give to Landlord twenty (20) days notice in
writing in advance of any cancellation or lapse of the effective date of any
reduction in the amounts of insurance. All policies shall be written as primary
policies, not contributing with and not in excess of coverage that Landlord may
carry.
ARTICLE 11
OTHER PAYMENTS BY TENANT
In addition to rent, Tenant shall pay to Landlord, during each lease year
or partial lease year, all ad valorem taxes and assessments levied and assessed
for any such year upon the Improvements and the underlying realty, including
taxes `currently due but not yet paid. Payment shall be made by Tenant in the
following manner:
(i) Commencing on the date that Minimum Rent commences and
thereafter on the first day of each calendar month
throughout the term of this Lease, Tenant shall pay to
Landlord along with Minimum Rent the ad valorem taxes
and assessments (including special and improvement
district assessments) as estimated by Landlord from time
to time.
(ii) Within sixty (60) days following the end of any lease
year, Landlord shall furnish Tenant a statement covering
the year just expired, certified as correct by an
authorized representative of Landlord, setting forth the
total ad valorem taxes and assessments. If such ad
valorem taxes and assessments exceed Xxxxxx's payments
so made, Tenant shall pay to Landlord the deficiency
within ten (10) days after receipt of said statement. If
said payments exceed such ad valorem taxes and
assessments, Tenant shall be entitled to offset the
excess against payments next thereafter to become due
Landlord as set forth herein.
With respect to any assessments levied against or upon the Premises and
the underlying realty, which may be paid in annual installments, only the amount
of such annual installment (with appropriate proration for any partial year) and
statutory interest shall be included within the
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computation of the annual taxes and assessments levied against the Premises and
the underlying realty.
Tenant shall pay prior to delinquency all taxes against and levied upon
fixtures, furnishings, equipment and all other personal property of Tenant
contained in the leased Premises.
Tenant shall pay to Landlord, in addition to and along with the rent
otherwise payable hereunder, any excise, transaction, sales or privilege tax, or
any other tax now or hereafter imposed by any government or agency upon Landlord
and attributed to or measured by rent or prorations payable by Xxxxxx.
In the event the real property taxes are withdrawn in whole or in part and
any assessments, taxes, fees, levies or charges are imposed as a substitute for,
or otherwise in lieu of increases in said real property taxes, so as to pay for
governmental services formerly provided without separate charge to property
owners or occupants, such as fire protection, sidewalk and street maintenance,
and refuse collection and removal, the same shall be considered "real property
taxes" for purposes of this Lease regardless of how denominated or the source
from which they are collected. The term "real property taxes" shall also include
all expenses reasonably incurred by Landlord in seeking reduction by the taxing
authorities of real property taxes applicable to the Premises.
ARTICLE 12
ASSIGNMENT AND SUBLETTING
Tenant shall not either voluntarily or by operation of law, assign, sell,
encumber, pledge or otherwise transfer all or any part of Tenant's leasehold
estate hereunder, or permit the Premises to be occupied by anyone other than
Tenant or Tenant's employees, or sublet the Premises or any portion thereof,
without obtaining, in each such instance, Landlord's prior written consent. Any
such assignment or other transfer or subletting shall be subject in each
instance to the recapture option of Landlord set forth herein. Xxxxxxxx's
consent shall not be unreasonably withheld for any proposed assignment, provided
that substantially the same type, class, nature and quality of business,
merchandise, services, management and financial soundness of ownership is
maintained and will continue to be furnished in a manner compatible with the
high standards contemplated by this Lease and/ provided further, that none of
the covenants, conditions or obligations imposed upon Tenant by this Lease, nor
any of the rights, remedies or benefits afforded Landlord by this Lease are
thereby impaired or diminished. Consent by Landlord to one or more assignments
of this Lease or to one or more sublettings of the Premises shall not operate to
exhaust Landlord's rights under this Article. The voluntary or other surrender
of this Lease by Tenant or a mutual cancellation hereof shall not work a merger
and shall, at the option of Landlord, terminate all or any existing subleases or
subtenancies, or shall operate as an assignment to Landlord of such subleases or
subtenancies. If Tenant is a corporation or is an unincorporated association or
partnership, the transfer, assignment or hypothecation of any stock or interest
in such corporation, association or partnership in the aggregate in excess of
forty-nine percent (49%) shall be deemed an assignment within the meaning and
provisions of this Article.
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If Tenant desires at any time to assign this Lease or to sublet the
Premises or any portion thereof, it shall first notify Landlord of its desire to
do so and shall submit in writing to Landlord (i) the name of the proposed
subtenant or assignee; (ii) the nature of the proposed subtenant's or assignee's
business to be carried on in the Premises; (iii) the terms and provisions of the
proposed sublease or assignment; and (iv) such reasonable financial information
as Landlord may request concerning the proposed subtenant or assignee. Any
request for Xxxxxxxx's approval of a sublease or assignment shall be accompanied
with a check in such reasonable amount as Landlord shall advise for the cost of
review and/or preparation of any documents relating to such proposed transfer,
but in no event less than $250.00.
At any time within fifteen (15) days after Xxxxxxxx's receipt of the
information specified above, and provided that Landlord approves of the
assignee, assignment, or sublet, Landlord may by written notice to Tenant elect
to either (i) sublease the Premises or the portion thereof as shall be specified
in said notice for its own account upon the same terms as those offered to the
proposed subtenant or assignee, as the case may be; or (ii) terminate this Lease
as to the portion (including all) of the Premises so proposed to be subleased or
assigned with a proportionate abatement in the rent payable hereunder. If
Landlord does not exercise either of these options within said fifteen-day
period, Tenant may thereafter within ninety (90) days after the expiration of
said fifteen-day period enter into a valid assignment or sublease of the
Premises or portion thereof, upon the terms and conditions described in the
information required to be furnished by Tenant to Landlord hereunder, or other
terms not less favorable to Tenant, subject, however, to Xxxxxxxx's consent as
herein provided.
No subletting or assignment, even with the consent of Landlord, shall
relieve Tenant of its obligation to pay the rent and perform all the other
obligations to be performed by Tenant hereunder. The acceptance of rent by
Landlord from any other person shall not be deemed to be a waiver by Landlord of
any provision of this Lease or to be a consent to any assignment or subletting.
ARTICLE 13
MORTGAGE SUBORDINATION
Upon the written request of Landlord or of any successor under a sale and
leaseback of the land and/or building in which the Premises are situated or of
any mortgagee or beneficiary of Landlord, Tenant shall from time to time in
writing subordinate its rights hereunder to the interest of any such successor,
as well as to the lien of any mortgage or deed of trust now or hereafter in
force against the land and building of which the Premises are a part or against
any buildings hereafter placed upon the land of which the Premises are a part,
and to all advances made or hereafter to be made upon the security thereof Such
written subordination shall be executed and delivered to Landlord within ten
(10) days from Xxxxxx's receipt of a request for the same. If Xxxxxx fails to
execute and deliver such statement to Landlord within said ten-day period,
Landlord may, as attorney-in-fact of Tenant, coupled with an interest, execute
such statement for, and on behalf, and in the name of Xxxxxx. If requested by
Xxxxxxxx in writing, Tenant shall give similar certificates from time to time
during the term of this Lease in the manner hereinabove provided.
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Xxxxxx agrees to give any mortgagee, by registered mail, a copy of any
notice of default served upon the Landlord, provided that prior to such notice
Tenant has been notified, in writing, (by way of Notice of Assignment of Rents
and Leases, or otherwise) of the address of such mortgagee. Tenant further
agrees that if Landlord shall have failed to cure such default within the time
provided for in this Lease, then the mortgagee shall have an additional thirty
(30) days within which to cure such default or if such default cannot be cured
within that time, then such additional time as may be necessary if, within such
thirty (30) days, any mortgagee has commenced and is diligently pursuing the
remedies necessary to cure such default, including but not limited to
commencement of foreclosure proceedings, if necessary to effect such cure, in
which event this Lease shall not be terminated while such remedies are being so
diligently pursued.
Landlord agrees to obtain from its lender, if any, a nondisturbance
agreement in form acceptable to Landlord and the lender, providing that as long
as Tenant performs its obligations hereunder, no foreclosure or deed in lieu of
foreclosure shall affect Tenants rights.
Notwithstanding anything to the contrary expressed in this Lease, Xxxxxx
agrees to amend or modify this Lease in any particulars as may be reasonably
required by any mortgagee or beneficiary of Landlord so long as any such
amendments or modifications do not materially alter the substantive rights of
Tenant herein and so long as Landlord has agreed to the same.
ARTICLE 14
EMINENT DOMAIN
In the event the entire Premises shall be appropriated or taken under the
power of eminent domain this Lease shall terminate and expire as of the date of
such taking.
In the event more than twenty-five percent (25%) of the square footage of
the Premises is taken under the power of eminent domain, or if by reason of any
appropriation or taking, regardless of the amount-so taken, the remainder of the
Premises is not one undivided parcel of property, either Landlord or Tenant
shall have the right to terminate this Lease as of the date Tenant is required
to vacate a portion of the Premises upon giving notice in writing of such
election within thirty (30) days after receipt by Xxxxxx from Landlord of
written notice that said Premises have been so appropriated or taken.
If neither Landlord nor Tenant elects to so terminate this Lease, Tenant
shall remain in that portion of the Premises that shall not have been
appropriated or taken as herein provided, or in the event less than twenty-five
percent (25%) of the square footage of the Premises shall be appropriated under
the power of eminent domain by any public or quasi-public authority, and the
remainder thereof is an undivided parcel of property, then in either such event
Landlord agrees, at Xxxxxxxx's cost and expense, as soon as reasonably possible
to restore the Premises on the land remaining to a complete unit of like quality
and character as existed prior to such taking; and thereafter the Minimum Rent
shall be reduced on an equitable basis, taking into account the relative value
of the portion taken as compared to the portion remaining.
All awards for the taking of any part of the Premises shall be the
property of Landlord, whether made as compensation for diminution of value of
the leasehold estate, for the taking or
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the fee, or as severance damages, provided that Tenant shall be entitled to any
award for loss or damage to Tenant's fixtures or removable personal property if
the same is sought by Xxxxxx and is awarded separately.
For the purposes of this Article 14, a voluntary sale or conveyance in
lieu of condemnation shall be deemed an appropriation or taking under the power
of eminent domain.
ARTICLE 15
DESTRUCTION OF LEASED PREMISES
If the Premises are destroyed or damaged by fire or other perils to such
an extent that they cannot be repaired and restored within one hundred twenty
(120) days, Landlord shall have the option to terminate this Lease; otherwise
Landlord shall forthwith and with due diligence, immediately following receipt
of proceeds of applicable insurance policy(ies), repair and restore said
building and Premises to substantially their condition immediately prior to such
damage or destruction. Xxxxxx's Minimum Rent and other charges during the period
of such repair and restoration shall not xxxxx and Tenant shall promptly pay all
amounts coming due hereunder.
If the damage or destruction referred to in the preceding paragraph
amounts to at least 25% of the Premises and occurs during the last year of the
term of this Lease, then Landlord and Tenant shall each have the option, at the
election of either of them, to terminate this Lease effective as of the date of
such damage or destruction, and any unearned rents paid in advance shall be
refunded. If this Lease shall not be terminated as provided in this paragraph,
the Premises shall be repaired and restored as hereinabove provided.
In the event Landlord is either obligated or elects to repair and restore
the building and Premises, Landlord shall have the immediate right to enter the
Premises for such purpose.
ARTICLE 16
BANKRUPTCY - INSOLVENCY
Tenant agrees that in the event all or substantially all Tenant's assets
are placed in the hands of a receiver or trustee, and such receivership
continues for a period of thirty (30) days, or should Tenant make an assignment
for the benefit of creditors or be finally adjudicated a bankrupt, or should
Tenant institute any proceedings under the Bankruptcy Act as the same now exists
or under any amendment thereof that may hereafter be enacted, or under any other
act relating to the subject of bankruptcy, wherein Tenant seeks to be
adjudicated a bankrupt or to be discharged of its debts or to effect a plan or
liquidation, composition of reorganization, or should any involuntary
proceedings be filed against Tenant under any such bankruptcy laws and such
proceeding not be removed within ninety (90) days thereafter, then this Lease or
any interest in and to the Premises shall not become an asset in any of such
proceedings and, in any such events and in addition to any and all rights or
remedies of Landlord hereunder or by law provided, it shall be lawful for
Landlord to declare the term hereof ended and to re-enter the Premises and take
possession thereof and remove all persons therefrom, and Tenant shall have no
further claim thereon or hereunder. The provisions of this Article 16 shall also
apply to any Guarantor of this Lease. In no event shall this Lease or any
interest of the Tenant therein be assigned or transferred by operation of law
without the express written consent of Landlord.
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ARTICLE 17
DEFAULT; RE-ENTRY; REMEDIES
In the event of any breach of any of the terms of this Lease by Xxxxxx,
then Landlord, besides other rights and remedies it may have under the laws in
force, shall have the immediate right of re-entry and may move all persons and
property from the Premises. Such property may be removed and stored in a public
warehouse or elsewhere at the cost of and for the account of Tenant. Should
Landlord elect to re-enter or should it take possession pursuant to legal
proceedings it may either terminate this Lease or it may, without terminating
this Lease, re-let said Premises or any part thereof for such term or terms and
at such rent and upon such other terns and conditions as Landlord in its sole
discretion may deem advisable with the right to make alterations and repairs to
said Xxxxxxxx. Rents received by Landlord from such re-letting shall be applied:
first, to the payment of any indebtedness, other than rent due hereunder;
second, to the payment of rent due and unpaid hereunder; third, to the payment
of any cost of such re-letting; fourth, to the payment of the cost of any
alterations and repairs to the Premises; and the residue, if any, shall be held
by Landlord and applied in payment of future rent as the same may become due and
payable hereunder. Should such rents received from such re-letting during any
month be less than that agreed to be paid during that month by Tenant hereunder,
then Tenant shall pay such deficiency to Landlord monthly. Tenant shall also pay
as soon as ascertained the cost and expense incurred by Landlord in such
re-letting or in making such alterations and repairs. No such re-entry or taking
possession of said Premises shall be construed as an election on its part to
terminate this Lease unless a written notice of such intention be given to
Tenant. Notwithstanding any such re-letting without termination, Landlord may at
any time thereafter elect to terminate this Lease in addition to any other
remedy it may have, it may recover from Tenant all damages it may. incur by
reason of such breach, including the cost of recovering the Premises and
including the worth at the time or such termination of the excess, if any, of
the amount or rent and charges equivalent to rent reserved in this Lease for the
remainder of the stated term over the then reasonable rent value of the Premises
for the remainder of the stated term.
For the purposes or this Article 17, the rent agreed to be paid by Tenant
or the amount of rent payable by Tenant shall be deemed to be the Minimum Rent
and all other sums required to be paid by Tenant pursuant to the terms of this
Lease. All such sums, other than the Minimum Rent, shall be computed on the
basis of the average monthly amount thereof, accruing during the preceding term
of the lease.
In the event of default, all Tenant's fixtures, furniture, equipment,
improvements, additions, alterations, and other personal property shall remain
on the Premises and in that event, and continuing during the length of said
default, Landlord shall have the right to take the exclusive possession of same
and to use same, rent or charge free, until all defaults are cured or, at its
option, at any time during the term of this Lease, to require Tenant to
forthwith remove same.
The waiver by Landlord of any breach of any term herein contained shall
not be deemed to be a waiver of such term or any subsequent breach of the same
or any other term herein contained. The subsequent acceptance of rent by
Landlord shall not be deemed to be a waiver of any preceding breach of Tenant of
any term of this Lease, other than the failure of Tenant to pay
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the particular rent so accepted, regardless of Xxxxxxxx's knowledge of such
preceding breach at the time of acceptance of such rent. No term of this Lease
shall be deemed to have been waived by Landlord unless such waivers shall be in
writing.
Neither party hereto shall bring any action for breach of this Lease
unless such party has given the other written notice of such breach, and such
breach remains uncured after the curative period. If the breach is the failure
pay rent or other monies due, the curative period shall be five (5) days; for
any other breach the curative period shall be thirty (30) days.
ARTICLE 18
SURRENDER OF PREMISES
Tenant shall, upon expiration or termination of the term hereby created,
surrender the Premises in good condition and repair, reasonable wear and tear
excepted. Tenant shall promptly surrender all keys for the Premises at the place
then fixed for payment of rent and shall inform Landlord of combinations on any
locks and safes on the Premises. At the expiration or earlier termination of
this Lease, Tenant shall execute, acknowledge and deliver to Landlord, within
five days after written demand from Landlord to Tenant, any quit-claim deed or
other document required by a title company to remove the cloud of this Lease
from the real property upon which the Premises are situated.
ARTICLE 19
HOLDING OVER
If Tenant shall hold over after the Term of this Lease, Tenant shall
become a tenant on a month-to-month basis upon all the terms, covenants and
conditions herein specified, but exclusive of any renewal options.
Notwithstanding the above, if Tenant shall hold over after the Term of this
Lease without Landlord's consent, Tenant shall pay double the Minimum Rent paid
during the prior year of the Term.
ARTICLE 20
FIXTURES AND PERSONAL PROPERTY
Any trade fixtures, signs, and other personal property of Tenant not
permanently affixed to the Premises shall remain the property of Xxxxxx, and
Landlord agrees that Tenant shall have the right; provided Tenant is not in
default under the terms of this Lease, at any time, and from time to time, to
remove any and all of its trade fixtures, signs, and other personal property
that, it may have stored or installed in the Premises. Tenant at its expense
shall immediately repair any damage occasioned to the Premises by reason of the
removal of any such trade fixtures, signs, and other personal property, and upon
expiration or earlier termination of this Lease, shall leave the Premises in a
neat and clean condition, free of debris. All other improvements to the Premises
by Tenant, including but not limited to floor coverings, carpeting, and
partitions, shall become the property of Landlord upon expiration or earlier
termination of this Lease.
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ARTICLE 21
REIMBURSEMENT
All covenants and terms herein contained to be performed by Tenant shall
be performed by it at its expense, and if Landlord shall pay any sum of money or
do any act that requires the payment of money by reason of the failure of Tenant
to perform such covenant or term, the sum or sums of money so paid by Landlord
shall be considered as additional rent and shall be payable by Tenant on the
first of the month next succeeding such payment, together with interest at the
maximum contractual rate permitted by law.
ARTICLE 22
CONSENTS BY LANDLORD
Whenever under this Lease provision is made for Tenant to secure the
written consent or approval by Landlord, such consent or approval shall be in
writing and shall not be unreasonably withheld.
ARTICLE 23
NOTICES
Any notice required or permitted under this Lease shall be deemed
sufficiently given or served when sent by certified mail to Tenant at the
address of the Premises as set forth in Paragraph D of the Basic Lease
Provisions, and to Landlord at the address then fixed for payment of rent, and
either party may by like written notice at any time designate a different
address to which notices shall subsequently be sent.
ARTICLE 24
LITIGATION, COURT COSTS, ATTORNEY'S FEES
In the event at any time either Landlord or Tenant shall institute any
action or proceeding against the other relating to the provisions of this Lease,
or any default hereunder, then and in that event, the prevailing party in such
action or proceeding shall be entitled to recover from the other party its
reasonable costs, expenses, and attorney's fees, which shall be deemed to have
accrued on the commencement of such action or proceeding and shall be
enforceable whether or not such action is prosecuted to judgment. In addition,
Landlord shall be entitled to all attorney's fees and all other costs incurred
in the preparation and service of any notice or demand hereunder, whether or not
a legal action is subsequently commenced. The parties waive trial by jury in any
action, proceeding, or counterclaim brought by either of them against the other
on any matters whatsoever arising under this Lease. This Lease shall be
construed in accordance with the laws of the Sate of Florida and the proper
venue for any legal action shall be Orange County, Florida.
ARTICLE 25
SALE OF PREMISES BY LANDLORD OR RE-LEASING
In the event of any sale or exchange of the Premises by Landlord and
assignment by Landlord of this Lease, Landlord shall be and is hereby entirely
relieved of all liability under all or its covenants and obligations contained
in or derived from this Lease arising out of any act,
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occurrence or omission relating to the Premises or this Lease occurring after
the consummation of such sale or exchange and assignment. Landlord and its
authorized agents and representatives shall be entitled to enter the Premises at
all reasonable times for the purpose of exhibiting the same to prospective
purchasers and, during the final six (6) months of the term and any extension or
renewal of the term hereof, Landlord shall be entitled to exhibit the Premises
for hire and/or for sale and to display thereon in such manner as will not
unreasonably interfere with Tenant's business the usual "For Sale" or "For
Lease" signs, and such signs shall remain unmolested on the Premises.
ARTICLE 26
SECURITY DEPOSIT
Tenant shall, on or before N/A, deposit with Landlord the sum, if any, set
forth in Paragraph I of the Basic Lease Provisions as "Security Deposit" The
Security Deposit shall be held by Landlord without liability for interest as
security for the faithful performance by Tenant of all the terms of this Lease.
Landlord shall have the right to commingle the Security Deposit with its other
funds.
If any of the rent or any other sum payable by Tenant should be overdue
and unpaid or if Landlord should make payments on behalf of Tenant, or if Tenant
should fail. to perform any of the terms of this Lease, then Landlord may, at
its option and without prejudice to any other remedy appropriate, apply the
Security Deposit or so much thereof as may be necessary to compensate Landlord
toward the payment of rent or Additional Charges or loss or damage sustained by
Landlord due to such breach on the part of Tenant; and Tenant shall upon demand
restore the Security Deposit to the original sum deposited. Should Tenant comply
with all of the terms of this Lease, the Security Deposit or any balance thereof
shall be returned to Tenant or, at the option of Landlord, to the last assignee
of Tenant's interest in this Lease at the expiration of the lease term.
ARTICLE 27
NO PERSONAL LIABILITY-OF LANDLORD
Tenant shall look solely to Xxxxxxxx's interest in the Premises for the
satisfaction of any judgment or decree requiring the payment of money by
Landlord based upon any default under this Lease, and no other property or
assets of Landlord shall be subject to levy, execution, or other enforcement
procedures or satisfaction of any such judgment or decree.
ARTICLE 28
GRANT OF EASEMENTS
Tenant hereby consents to any and all conveyances or grants of easements
upon the Premises that Landlord reasonably determines to be necessary in order
to adequately provide utilities to, or ingress and egress from, the Premises.
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ARTICLE 29
PARTIAL INVALIDITY
If any provision of this Lease is determined to be void by any court of
competent jurisdiction, such determination shall not affect any other provision
of this Lease and such other provision shall remain in full force and effect. If
any provision of this Lease is capable of two constructions, one of which would
render the provision void and one of which would render the provision valid, the
provision shall be interpreted in the manner that would render it valid.
ARTICLE 30
ESTOPPEL CERTIFICATE
Tenant shall, within Ten (10) days after Landlord's written request,
execute and deliver to Landlord a written declaration that this Lease is in full
force and effect; that there are no incurred defaults in Landlord's performance;
that this Lease has not been assigned, modified, supplemented, or amended
(except by such writings as shall be stated); that all conditions under this
Lease to be performed by Landlord have been satisfied; that there are no
defenses or offsets against the enforcement of this Lease by the Landlord, or
stating those claimed by Xxxxxx; the amount of advance rent, if any (or none if
such is the case) paid by Tenant; the date to which rent has been paid; and the
amount of security deposited with Landlord. Such declaration shall be executed
and delivered by Xxxxxx from time to time as may be requested by Landlord.
Xxxxxxxx's mortgage lenders and/or purchasers shall be entitled to rely upon
same. Tenant's failure to deliver such declaration within the time permitted
hereby shall be conclusive upon Tenant that this Lease is in full force and
effect, except to the extent any modification has been represented by Landlord,
and that there are no incurred defaults in Landlord's performance, and that not
more than one month's rent has been paid in advance.
ARTICLE 31
LATE PAYMENT CHARGE
Xxxxxx agrees that in the event that rent and other sums due hereunder are
received by Landlord more than five (5) business days after the date on which
they are due, Tenant shall pay to Landlord a late payment charge equal to five
percent (5%) of the total sum due, plus applicable sales tax, as liquidated
damages and not as a penalty; provided, however, the delay in imposition of the
late payment charge shall not be construed as extending the date on which sums
become due and payable hereunder, nor as extending the date on which a default
shall be deemed to have occurred by Xxxxxx's failure to timely pay sums due to
Landlord hereunder.
ARTICLE 32
BROKER'S FEE
Tenant represents and warrants to Landlord that there is no agent, broker,
finder, or other party with whom Xxxxxx has dealt who are or may be entitled to
any commission or fee with respect to this Lease or the Premises. Tenant shall
indemnify and hold Landlord harmless from any claims arising out of a breach of
Xxxxxx's representation and warranty set forth in the preceding sentence.
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ARTICLE 33
ENVIRONMENTAL COMPLIANCE
Tenant covenants and agrees not to use, generate, manage, treat,
manufacture, store, or dispose of on, under, or about the Premises or transport
to or from the Premises any Hazardous Materials (other than De Minimis Amounts).
For the purpose or this Lease, "Hazardous Materials" shall include but not be
limited to any and all chemicals, materials, or substances defined as "hazardous
substances," "hazardous materials," "hazardous wastes" or "toxic substances" in
the laws or any governmental authority having jurisdiction over the Premises.
(and any other chemical, material ,or substance, exposure to which is
prohibited, limited, or regulated by any such governmental authority) or any
rules or regulations adopted and guidelines promulgated pursuant to any of the
foregoing laws, as all such laws, rules, or regulations may be amended or
replaced from time to time (collectively "Hazardous Materials Laws"). The term
"De Minimis Amounts" shall mean, with respect to any given level of Hazardous
Materials, that such level or quantity of Hazardous Materials in any form or
combination of forms (i) does not constitute a violation of any Hazardous
Materials Laws, and (ii) is customarily employed in, or associated with, similar
projects in the county where the Premises are located. Tenant further covenants
and agrees to pay all costs and expenses associated with all enforcement,
removal, remedial, or other governmental or regulatory actions, agreements, or
orders threatened, instituted, or completed pursuant to any Hazardous Materials
Laws, and all audits, tests, investigations, "cleanup" reports, and other such
items incurred in connection with any efforts to complete, satisfy, or resolve
any matters, issues, or concerns, whether governmental or otherwise, arising out
of the use, generation, management, treatment, manufacturing, storage, disposal,
or transportation of Hazardous Materials in any amount by Tenant, its employees,
agents, invitees, subtenants, licensees, assignees, or contractors.
ARTICLE 34
MISCELLANEOUS
A. Time is of the essence of this Lease and the terms and conditions
hereof shall extend to and be binding upon the heirs, executors, successors, and
assigns of the parties hereto, and any mention of the singular shall include the
plural and the plural shall include the singular.
B. Tenant shall not record this Lease without the written consent of
Landlord.
C. The section headings contained in this Lease are for purposes of
reference only and shall not limit or define the meaning of any of the terms or
provisions hereof.
D. The word "Landlord" shall include not only the original Landlord, but
also any person or entity hereafter acquiring the Landlord's interest in this
lease.
E. This Lease may be amended only by an instrument in writing signed by
both parties.
F. It is agreed that nothing contained in this Lease shall be deemed or
construed as creating a partnership or joint venture between Landlord and Tenant
or between Landlord and any other party, or cause Landlord to be responsible in
any way for the debts or obligations of Tenant, or any other party.
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G. Pursuant to Section 404.056(8), Florida Statutes, Tenant is hereby
notified as follows: Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present health
risks to persons who are exposed to it over time. Levels of radon that exceed
federal and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your county
health unit.
[The balance of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have set their hands the day and
year first above written.
LANDLORD:
Xxxx X. Xxxxx and Xxxxxxx X. Xxxxx as
Trustees of the Xxxx X. and Xxxxxxx X. Xxxxx
1989 Family Trust.
By: /s/ XXXX X. XXXXX
--------------------------------------
Xxxx X. Xxxxx
By: /s/ XXXXXXX X. XXXXX
--------------------------------------
Xxxxxxx X. Xxxxx
TENANT:
The Xxxxxxx Xxxxxx Corporation, a Delaware
corporation
By: /s/ XXXXXX X. XXXXXXX
--------------------------------------
Xxxxxx X. Xxxxxxx, President
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Exhibit "A"
LEGAL DESCRIPTION
0000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx
Xxxxxx Xxxxxx Tax Parcel I.D. #04-24-29-6401-02-002
and #04-24-29-6351-01-001
From the Northeast corner of Block "B", ORLANDO CENTRAL PARK NUMBER SIXTY-ONE,
as recorded in Plat Book 20, Page 22, Public Records of Orange County, Florida,
run South 00 degrees 16 minutes 38 seconds East 385.00 feet along the East
boundary of said Block "B" to the Point of Beginning; thence continue South 00
degrees 16 minutes 38 seconds East 500.00 feet along the said East boundary;
thence run South 89 degrees 43 minutes 22 seconds West 269.77 feet to a point on
the West boundary of said Block "B"; thence run North 00 degrees 13 minutes 59
seconds West 500.00 feet along the said West boundary; thence run North 89
degrees 43 minutes 22 seconds East 269.39 feet to the Point of Beginning;
and
That part of Block "A", ORLANDO CENTRAL PARK NUMBER SIXTY-ONE-A as recorded in
Plat Book 29, Page 51, Public Records of Orange County, Florida, being described
as follows: BEGIN at the Northeast corner of Block "A", ORLANDO CENTRAL PARK
NUMBER SIXTY-ONE-A as recorded in Plat Book 29, Page 51, Public Records of
Orange County, Florida; thence run South 00 degrees 16 minutes 38 seconds East
130.00 feet along the East boundary of said Block "A"; thence run South 89
degrees 43 minutes 22 seconds West 240.10 feet to a point on the Westerly
boundary of said Block "A", said point being on a nontangent curve concave
Westerly and having a radius of 60.00 feet; thence from a tangent bearing of
North 04 degrees 51 minutes 15 seconds East, run Northerly 68.16 feet along the
arc of said curve and said Westerly boundary through a central angle of 65
degrees 05 minutes 14 seconds to the end of said curve; thence run North 00
degrees 13 minutes 59 seconds West 72.70 feet along said Westerly boundary to
the Northwesterly corner of said Block "A"; thence run North 89 degrees 43
minutes 22 seconds East 269.77 feet along the North boundary of said Block "A"
to the Point of Beginning.
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