EXHIBIT 10.9.5
XXXXXXX XXXXX BMW PROPERTY
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") made this ____ day of October 1996, by
and between XXXXXXX X. XXXXX, an individual resident of Georgia ("Landlord"),
and XXXXXXX XXXXX BMW, INC., a Georgia corporation ("Tenant").
W I T N E S S E T H:
FOR AND IN CONSIDERATION of the sum of $10.00 Dollars in hand paid and
of the mutual covenants and conditions contained herein, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. PREMISES. Landlord leases to Tenant and Tenant leases from Landlord
the following property:
All that tract or parcel of land containing approximately
3.948 acres, lying and being in Land Xxx 000 xx xxx 0xx
Xxxxxxxx xx Xxxxxxxx Xxxxxx, Xxxxxxx, being more
particularly described on EXHIBIT A, attached hereto and
incorporated by reference herein,
together with all improvements thereon and all rights, privileges, easements and
appurtenances pertaining thereto (collectively, the "Premises") upon the terms
contained herein.
2. TERM. Landlord and UNITED AUTO GROUP, INC., a Georgia corporation
have entered into a Purchase and Sale Agreement Xxxxxxx Xxxxx BMW Property for
the Premises dated of even date herewith (the "Agreement"). The term hereof
shall begin on the date hereof and shall end upon the Closing as described in
the Agreement ("Term").
3. RENT.
(a) The rent for the first full six months of the Term shall be FORTY-
FIVE THOUSAND AND NO/100 DOLLARS ($45,000.00) per month with the first month
rent due and payable upon the date of this Lease. All other rent payments shall
be paid in advance on the _____________ (___) day of the month. After six full
months, subject to Section (b) below, the rent shall increase to FIFTY-FIVE
THOUSAND AND NO/100 DOLLARS ($55,000.00) per month.
(b) NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY,
if Tenant was ready, willing and able to close the purchase and sale of the
Premises under the Agreement on or before six (6) months after the date hereof,
but such closing is not consummated when Tenant is ready to close thereunder and
such failure to close is not the result of Tenant's default, then so long as
this Lease is in effect, the rent for the Premises shall be Forty-Five Thousand
and No/100 Dollars ($45,000.00) per month.
4. UTILITIES. Tenant shall have all utilities listed in its name
and shall pay all utility bills, including, but not limited to water, sewer,
gas, electricity, fuel, light, and heat bills, for the Premises, and Tenant
shall pay all charges for garbage collection services or other sanitary services
rendered to the Premises or used by Tenant in connection therewith. If Tenant
fails to pay for such services, Landlord may, at its option and after providing
Tenant with at least thirty (30) days prior written notice, pay the same, and
the amount of the payment shall be payable to Landlord as additional rent.
5. USE OF THE PREMISES; ENVIRONMENTAL INDEMNITY. The Premises shall
be used for the operation of a new and used automobile dealership, service
facility, paint and body shop facility, and uses incidental thereto, and for any
other purposes which may be agreed to by the parties. The use of the Premises
by Tenant shall be in compliance with federal, state and local laws and any
applicable restrictive covenants. Furthermore, Tenant shall not violate any
federal or state environmental law, and Tenant agrees to indemnify and hold
harmless Landlord from any and all damages, costs, fines and expenses that might
arise as a result of any such violation and from its placement upon the Premises
of hazardous wastes and toxic substances that are placed on the Premises after
the date hereof. Notwithstanding anything to the contrary contained in this
Paragraph 5, there shall not be deemed to be a nuisance or trespass and Tenant's
obligation to indemnify and hold Landlord harmless shall not extend to any
damages, claims, or liabilities arising as a result of contaminants existing on
the Premises on the date hereof or migrating onto or beneath the Premises
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after the date hereof, where such contamination is not caused by or attributable
to Tenant, all of which shall be Landlord's responsibility.
6. REPRESENTATION. All representations and warranties contained in
Sections 2.10, 2.11 and 3.3 of that certain Stock Purchase Agreement (the "BMW
SPA") dated August 5, 1996 by and among United Auto Group, Inc., a Delaware
corporation, UAG Atlanta IV, Inc., a Delaware corporation, Xxxxxxx Xxxxx BMW,
Inc., a Georgia corporation, and Xxxxxxx X. Xxxxx are hereby incorporated by
reference to the same effect as if fully set forth herein. Nothing contained in
this Lease shall in any way affect or diminish the rights of the parties under
the BMW SPA for the breach of any representation or warranty contained in the
BMW SPA.
7. REPAIRS BY LANDLORD. All repairs, replacements, and maintenance
of any kind to the Premises shall be the sole responsibility of Tenant except to
the extent the necessity therefor would constitute a breach of Landlord's
representations or warranties under the BMW SPA or the Agreement.
8. REPAIRS BY TENANT. Subject to Landlord's representations and
warranties in the BMW SPA and the Agreement, Tenant accepts the condition of the
Premises as of the date hereof and agrees that the Premises are suited for the
uses specified herein. Tenant shall, throughout the Term, at its expense,
maintain the Premises in good order and repair, including but not limited to
repair and maintenance of the electrical, heating, ventilation and air
conditioning and plumbing systems. Tenant further agrees to care for all
landscaping on the Premises, including the mowing of grass, paving, policing,
care of shrubs and general landscaping. If Tenant fails to properly maintain
and repair any portion of the Premises, Landlord may, following at least thirty
(30) days prior written notice to Tenant, maintain the same and Tenant shall pay
to Landlord within thirty (30) days after demand the commercially reasonable
costs thereof together with interest on said amount from the date of payment by
Landlord at a rate equal to the interest rate provided in the BMW SPA for non-
payment of obligations ("Interest Rate"). Subject to Tenant's repair
obligations hereunder,
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Tenant agrees to return the Premises to Landlord in as good condition and repair
as when first received by Tenant, natural wear and tear and condemnation
excepted.
9. TAX AND INSURANCE. Tenant shall promptly and on a timely basis
pay as additional rent during the Term all charges for taxes (including, but not
limited to, ad valorem taxes, special assessments and any other governmental
charges) on the Premises, which amounts shall be prorated between Tenant and
Landlord for all periods partially but not entirely within the Term. Tenant
shall also maintain, at all times during the Term of this Lease, fire and
extended insurance coverage on the Premises in amounts equal to the full
replacement value of the Premises, and written on policies issued by
underwriters reasonably acceptable to Landlord. Landlord agrees that such
coverages may be provided by blanket policies of insurance covering other
locations in addition to the Premises. All policies shall insure Landlord and
Tenant as their respective interests shall appear and shall contain a
replacement cost endorsement. Should Tenant fail to pay such tax expenses or
fail to provide certificates evidencing the required insurance coverage,
Landlord may, following at least thirty (30) days prior written notice to
Tenant, pay any such charges or secure such coverage, and Tenant shall pay to
Landlord within thirty (30) days after demand as additional rent all amounts so
expended by Landlord together with interest on said amount from the date of
payment by Landlord at a rate equal to the Interest Rate.
10. DESTRUCTION OF OR DAMAGE TO THE PREMISES. If the Premises should
be damaged or destroyed by any insured peril whatsoever during the Term, all
insurance proceeds shall be delivered to Tenant and Tenant shall proceed with
reasonable diligence to rebuild and repair the Premises to substantially the
condition in which it existed prior to such damage or destruction.
11. INDEMNITY; WAIVER OF SUBROGATION. Subject to Landlord's
obligations in this Lease and the Agreement Tenant agrees to indemnify and hold
harmless Landlord against all claims and expenses resulting therefrom, including
actual attorneys' fees reasonably incurred and court costs, for damage to
persons or property by reason of the use or occupancy of the Premises by Tenant.
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Tenant shall periodically provide Landlord with certificates of general
liability insurance naming Landlord as an additional insured, in an amount of
not less than $3,000,000 and with an insurance carrier reasonably satisfactory
to Landlord. The dollar amount of such insurance coverage shall be reviewed
annually during the Term, and adjusted if necessary, in order to provide for
adequate protection to both Landlord and Tenant; provided, however, in no event
shall any aggregate percentage increases in Tenant's liability coverage
obligations hereunder ever exceed the cumulative percentage increases in the
Consumer Price Index for all wage earners for Atlanta, Georgia occurring during
the corresponding portion of the Term of this Lease. Landlord and Tenant each
hereby release and waive any right of recovery against the other for any loss,
claim, liability, or damage occurring on or to the Premises, whether wholly or
contributorily caused by the negligence of the other party, to the extent that
the same is compensated by actual receipt of proceeds from insurance policies
covering such loss, claim, liability, or damage.
12. ALTERATIONS. Tenant shall make no structural alterations,
additions or improvements to the Premises without the express prior written
consent of Landlord which consent shall not be unreasonably withheld or delayed,
except that Tenant may alter any wall that is not of a load-bearing nature
without the consent of Landlord. Tenant may make non-structural changes and
modifications to the Premises without Landlord's approval. In the event
Landlord has not responded to Tenant's written request for alterations within
fifteen (15) days of when received, such alteration shall be deemed to have been
approved by Landlord. Tenant agrees to save Landlord harmless on account of any
claim or lien of mechanics, materialmen or other party, in connection with any
alterations, additions or improvements of or to the Premises performed by
Tenant. Tenant shall furnish such waivers of liens and appropriate affidavits
from the general contractor or subcontractors as Landlord may reasonably
request. Notwithstanding the foregoing, Tenant shall also be entitled to make
the following changes without necessity of Landlord's consent: (i) any
alterations required to be made by it pursuant to governmental orders, rules,
laws, regulations, ordinances or
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requirements, and (ii) any changes in its signage (provided such are in
compliance with local ordinances and any restrictive covenants affecting the
Premises) or those recommended or required by the automobile manufacturer whose
automobiles are sold on the Premises. Tenant shall have the right to finance
any alterations or improvements permitted hereunder and may pledge its interest
in this Lease as security therefor; provided, however, that any liens granted in
connection with such financings shall be subordinate to the rights of Landlord
under this Lease.
13. GOVERNMENTAL ORDERS. Subject to Tenant's right to terminate this
Lease hereunder, Tenant agrees, at its own expense, to promptly comply with all
requirements of any public authority made necessary by reason of Tenant's
occupancy of the Premises from and after the date hereof or which may be
necessary for Tenant's occupancy to continue if the requirement to comply arises
after the date of this Lease. Landlord shall have no obligation of any kind for
such compliance except to the extent it arose prior to the date of this Lease.
14. CONDEMNATION. If all or a substantial part of the Premises is
condemned for any public use or purpose, then the Term shall not cease from the
date when possession thereof is taken, and rent shall not be prorated as of that
date; and this Lease shall continue as to the remaining portion of the Premises
in full force and effect notwithstanding any such taking. All compensation and
damage caused by such condemnation shall be recovered from the condemnor and
paid to the Tenant.
15. ASSIGNMENT AND SUBLETTING. Tenant shall, without the prior
written consent of Landlord, have the right to assign this Lease or any interest
hereunder, or sublet the Premises or any part thereof, or permit the use of the
Premises by any party other than Tenant. Any assignee of Tenant, at the option
of Landlord, shall become directly liable to Landlord for all obligations of
Tenant hereunder, but no sublease or assignment by Tenant shall relieve Tenant
of any liability hereunder. Without in any way limiting the foregoing, Tenant
shall specifically be entitled to freely assign or sublet its interest in this
Lease to any parent, subsidiary or other entity under common
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control with Tenant or Tenant's parent, without the prior written consent of
Landlord. Moreover, the sale or transfer of all or any part of the capital
stock of Tenant shall not be deemed to be an assignment hereunder.
16. REMOVAL OF FIXTURES. Tenant may (so long as no Event of Default
has occurred and is continuing hereunder), prior to the end of the Term, remove
all trade fixtures and equipment which Tenant has purchased as leasehold
improvements or placed in the Premises subsequent to the date hereof, provided
that Tenant repairs all damage to the Premises caused by the removal. However,
any buildings, fixtures, or other attached property installed by Tenant as
replacements of existing items, or anything that cannot be removed without
substantially changing the character of the Premises, shall become the property
of Landlord.
17. CANCELLATION OF LEASE BY LANDLORD. It shall be an "Event of
Default" hereunder if,
(a) Tenant fails to pay rent, including additional rent herein
reserved, when due, and fails to cure the failure to pay within ten (10)
days after receipt of written notice thereof from Landlord;
(b) Tenant fails to perform any of the terms or provisions of
this Lease other than the provision requiring the payment of rent, and
fails to cure the default within thirty (30) days after the date of receipt
of written notice of default from Landlord; provided, however, that if the
nature of the default is such that the same cannot reasonably be cured
within said thirty (30) day period, Tenant shall not be deemed to be in
default if Tenant shall, within such period, commence such cure and
thereafter diligently prosecute the same to completion;
(c) Tenant is adjudicated bankrupt;
(d) a permanent receiver is appointed for Tenant's property and
the receiver is not removed within sixty (60) days after written notice
from Landlord to Tenant to obtain the removal;
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(e) Tenant files a petition seeking an order for relief under
Title 11 of the United States Code, as amended, or under any similar law or
statute of the United States or any state thereof, or a petition seeking an
order for relief under Title 11 of the United States Code, or any similar
law or statute of the United States or any state thereof, is filed against
Tenant and such petition is not dismissed with prejudice within sixty (60)
days from the date of filing;
(f) Tenant makes an assignment for the benefit of creditors; or
(g) Tenant's effects should be levied upon or attached under
process against Tenant and not satisfied or dissolved within thirty (30)
days after written notice from Landlord to Tenant to obtain satisfaction
thereof.
Upon the occurrence of an Event of Default, Landlord may pursue any right or
remedy against Tenant available at law or in equity. Without limitation to the
foregoing, Landlord, at its option, may at once or within six (6) months
thereafter (so long as such Event of Default is continuing), elect to terminate
this Lease by written notice to Tenant; whereupon this Lease shall terminate.
Any notice provided in this section may be given by Landlord, or its attorney,
or agent herein named. Upon termination of the Lease by Landlord, Tenant shall
at once surrender possession of the Premises to Landlord and remove all of
Tenant's effects therefrom, or Landlord shall be entitled to remove all persons
and effects therefrom, using such force as may be necessary without being guilty
of trespass, forcible entry or detainer or other tort. NOTWITHSTANDING ANYTHING
CONTAINED HEREIN TO THE CONTRARY, if there is an Event of Default, Landlord must
give notice to Tenant and United Auto Group, Inc. ("UAG") of its intent to
exercise any remedy therefor and UAG (or its successors or assigns) shall have
thirty (30) days thereafter in which to purchase the Premises pursuant to the
terms of the Agreement before Landlord may pursue any right or remedy against
Tenant under this Lease; provided, however, that such thirty (30) day purchase
period shall be extended one (1) day for each day of delay in closing under the
Agreement occasioned by the act or omission of Landlord
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in performing its obligations under the Agreement or for any other reason the
Closing thereunder does not occur except for Tenant's default under this
Agreement ("Notice and Cure Requirement").
18. RELETTING BY LANDLORD. If, after an Event of Default, Landlord
has the right to but has not elected to terminate this Lease, Landlord may,
subject to the Notice and Cure Requirement, as Tenant's agent, without
terminating this Lease, enter upon and exercise good faith efforts to rent the
Premises at the best price obtainable by reasonable effort, for the remainder of
the term hereof. Tenant shall be liable to Landlord for the present value of
any deficiency between rent due hereunder and the rent received by Landlord upon
reletting. For purposes of computing the "present value of any deficiency" in
accordance with the provisions of this paragraph, the parties agree to utilize a
discount rate equal to the then prevailing prime rate of interest charged by
leading money center banks as published in "THE WALL STREET JOURNAL".
19. WARRANTIES OF TITLE AND QUIET POSSESSION. Landlord warrants and
represents that it has good and marketable title to the Premises and has full
right to make this Lease and that Tenant shall have quiet and peaceable
possession of the Premises during the Term so long as no Event of Default is in
existence and continuing hereunder.
20. ESTATE CREATED; FUTURE GRANTS. Landlord and Tenant intend for
and agree that this Lease shall create a leasehold estate in the Premises for
the Term. Landlord agrees that, during the Term of this Lease, it will not
execute or join in any conveyances of easements or restrictive covenants or
other agreements restricting or affecting the Premises or Tenant's use thereof
without the prior written consent of Tenant, which may be withheld in Tenant's
sole discretion.
21. SUBORDINATION ATTORNMENT. Landlord represents that there is only
one Deed to Secure Debt with respect to the Premises currently in force in favor
of NationsBank dated November 16, 1984, recorded in Deed Book 2920, Page 104,
Gwinnett County, Georgia records, as modified by Modification Agreement date
August 13, 1985, recorded in Deed Book 3124, Page 509, aforesaid records.
Should Landlord ever give a Deed to Secure Debt with respect to the Premises,
Landlord
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shall provide Tenant a Subordination, Non-Disturbance and Attornment Agreement
from such lender in the form attached hereto and incorporated herein by
reference as EXHIBIT "B" ("SNDA"). This Lease is subject and subordinate to any
deed of trust, mortgage, or other security instrument, which presently or may in
the future cover the Premises, and to any increases, renewals, modifications,
consolidations, replacements, and extensions of any of such deed of trust,
mortgage, or security instrument; provided, however, that Tenant's subordination
to any encumbrance arising after the date of this Lease shall be conditioned
upon Landlord's delivery to Tenant of a non-disturbance agreement in form
reasonably satisfactory to Tenant containing the substantive provisions of the
SNDA. Notwithstanding the generality of the foregoing, any mortgagee shall have
the right at any time to subordinate any deed of trust, mortgage, or other
security instrument to this Lease.
22. ATTORNEY'S FEES. In the event either party should seek to
enforce its rights under this Lease through judicial process, the prevailing
party in any such action shall be entitled to collect from the other party, in
addition to all other sums owing hereunder, its reasonable attorney's fees.
23. RIGHTS CUMULATIVE. All rights hereunder shall be cumulative but
not restrictive to those given by law.
24. SERVICE OF NOTICE. Any notice required or permitted to be
delivered hereunder may be delivered in person or by United States certified
mail, postage prepaid, return receipt requested, or by recognized overnight
courier (e.g. Federal Express or DHL), next business day delivery, charges
prepaid, addressed to the parties at
Landlord: Xxxxxxx X. Xxxxx
0000 Xxxxxxx Xxxx
Xxxxx 0
Xxxxxxx, Xxxxxxx 00000
with a copy to: Xxxxxxx Xxxx Xxxxx, Esq.
Xxxxx & Associates, P.C.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
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Tenant and
UAG: Xxxxxxx Xxxxx BMW, Inc.
c/o United Auto Group, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
with a copy to: Xxxxxxx X. Xxxxx, Esq.
Xxxxxx & Xxxxxx
2700 International Tower
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
or at such other addresses as may be specified by written notice delivered in
accordance herewith. Such notices shall be deemed effective three (3) business
days after deposited in the U.S. mail, or on the next business day if delivered
by overnight courier, or immediately upon delivery in person.
25. WAIVER OF RIGHTS. Neither party's failure to exercise any power
given to them hereunder, or to insist upon strict compliance by the other party
with its obligations hereunder, nor any custom or practice of the parties at
variance with the terms hereof, shall constitute a waiver of such party's right
to demand exact compliance with the terms hereof.
26. TIME OF ESSENCE. Time is of the essence under this Lease.
27. SUCCESSORS AND ASSIGNS. This Lease shall apply to, inure to the
benefit of, and be binding upon the parties hereof and their respective
successors, assigns, and legal representatives except as otherwise expressly
provided herein.
28. ENTIRE AGREEMENT; CONFLICT. This Lease, including any
attachments made a part hereof or thereof, the BMW SPA and the Agreement,
contain the entire agreement between the parties with respect to the lease of
the Premises and no representations, inducements, promises or agreements, oral
or otherwise, between the parties, not embodied herein shall be of any force or
effect. The parties agree to execute and record a memorandum of this Lease in
the real property records of Gwinnett County in the form specified by the Title
Insurance Company.
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29. SEVERABILITY. If any term, provision or clause of this Lease, or
if the application thereof to any person or circumstances, shall to any extent
be invalid or unenforceable, then the remainder of this Lease or the application
of such term, provision or clause to persons or circumstances other than those
to which it is invalid or unenforceable shall not be affected thereby, and each
and every remaining term, provision, clause and application of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
30. EXECUTION IN COUNTERPARTS. This Lease may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument.
31. AMENDMENT. This Lease may not be altered, waived, amended or
extended except by an instrument in writing signed by Landlord and Tenant.
32. HEADINGS. The headings used in this Lease are for the purposes
of convenience only. They shall not be construed to limit or to extend the
meaning of any part of this Lease.
33. GOVERNING LAW. This Lease shall be construed in accordance with
the laws of the State of Georgia, and all obligations of the parties created
hereunder are performable in Gwinnett County, Georgia.
34. FORCE MAJEURE. Wherever a period of time is herein prescribed
for action to be taken by either Landlord or Tenant, such party shall not be
liable or responsible for, and there shall be excluded from the computation of
any such period of time, any delays due to strikes, riots, acts of God,
shortages of labor or materials, wars, governmental laws, regulations or
restrictions or other causes which are beyond the control of Landlord or Tenant,
as the case may be.
IN WITNESS WHEREOF, the parties herein have hereunto caused their duly
authorized representatives to set their hands and seals the day and year first
above written.
[SIGNATURES ON FOLLOWING PAGE]
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LANDLORD:
Signed Sealed and Delivered /s/ Xxxxxxx X. Xxxxx (SEAL)
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in the presence of: XXXXXXX X. XXXXX
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Unofficial Witness
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Notary Public
[Notarial Seal]
My Commission Expires:
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TENANT:
Signed Sealed and Delivered XXXXXXX XXXXX BMW, INC.
in the presence of: a Georgia Corporation
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Unofficial Witness
By: /s/ Xxxxxxx X. Xxxxx
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Name: XXXXXXX X. XXXXX
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Title: CEO
--------------------------
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Notary Public
Attest:
[Notarial Seal] By: /s/ Xxxxx Xxxxxxx
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Name: XXXXX XXXXXXX
--------------------------
My Commission Expires: Title: TREASURER
--------------------------
----------------------------
[Corporate Seal]
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