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** Indicates that information has been omitted herein pursuant to a request for
confidential treatment filed with the Securities and Exchange Commission
simultaneously herewith.
Exhibit 10.20
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AGREEMENT FOR TERMINAL FACILITY
COLLOCATION SPACE
THIS AGREEMENT made as of this 2nd day of July, 1998, (the "Effective
Date") by and between COMSTOR Corporation, a Virginia corporation, hereinafter
called "COMSTOR", and SAGE Networks, Inc., hereinafter called "Customer."
RECITALS
WHEREAS, COMSTOR currently owns or leases certain premises (the
"Premises") described in the Collocation Schedule(s) and amendments thereto, if
any, identified herewith and made a part hereof, at which certain services shall
be provided in conformity with the applicable specifications set forth in each
Collocation Schedule. Each Collocation Schedule shall only be effective upon its
being dated and subscribed to by the parties for identification purposes and
together with the terms hereof shall constitute the entire agreement between the
parties with respect to the Collocation Space (collectively the "Agreement");
and
WHEREAS, Customer desires access to the Premises to locate therein certain
telecommunications equipment and other data processing equipment used by
Customer in its Internet Web Hosting business and cabling (hereinafter the
"Equipment") for the purpose of interconnecting the Equipment with COMSTOR's
telecommunications network (the "COMSTOR Network"); and
WHEREAS, COMSTOR is willing to grant Customer a license to store equipment
in a portion of the Premises (hereinafter the "Terminal Facility") upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
COMSTOR and Customer (collectively the "Parties") hereby agree as follows:
I. LICENSE TO OCCUPY, PERMISSIBLE USE AND RELOCATION PROVISIONS.
A. COMSTOR hereby grants to Customer a non-exclusive license to use its
facilities hereinafter described and attendant space associated with such
facilities. The parties understand and acknowledge that this Agreement is
not intended to grant any legal or beneficial right, title or interest in
real property or in any leasehold estate, or to grant any possessory
right, title or interest, legal, beneficial or otherwise, in any such
property interest or estate. The license granted hereby shall not
constitute any legal or beneficial interest in personal property, but
shall be and remain a license to use said facility limited by the terms
and conditions of this Agreement. Nothing contained herein shall be
construed as altering or amending the nature of the foregoing grant.
Further, this Agreement shall be interpreted in a manner consistent with
said grant and any provision hereof which cannot be interpreted in such
consistent manner shall be null and void and unenforceable. The license
hereby granted is personal to Customer.
B. COMSTOR grants to Customer a license to store its and its customers
equipment in a portion of the Terminal Facility (the "Collocation Space"
or the "Space") depicted in each Collocation Schedule attached hereto.
C. Only upon the express written consent of COMSTOR may Customer interconnect
the Equipment with equipment or services of any local access provider
other than COMSTOR, which consent will not be unreasonably withheld. If
Customer should interconnect the Equipment with equipment or services of
any entity other than COMSTOR without obtaining the
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prior written consent of COMSTOR, Customer shall be in breach of this
Agreement and COMSTOR may pursue any legal or equitable remedy, including
but not limited to the immediate termination of the license pursuant to
Section VI, below. If access provided under the Internet Service Agreement
is down for a 24 hour period, Customer will have the right to interconnect
Equipment with a local access provider in addition to COMSTOR.
D. In connection with the Space made available hereunder during the Term,
COMSTOR shall perform services which support the overall operation of the
Terminal Facility (e.g., janitorial services, environmental systems
maintenance, and power plant maintenance) at no additional charge to
Customer.
E. Internet access and connectivity to be provided to Customer and the space
during the Term will be in accordance with the Internet Service Agreement
entered into between Customer and COMSTOR dated as of 2 July 1998, the
Terms of which are incorporated herein by reference.
F. Without expressed prior written consent of Customer, COMSTOR will
not effect in any manner either physically or electronically Customer
Equipment, except in such instances where such intervention will prevent
damage to the Equipment or other equipment located in the terminal
facility.
G. Customer shall provide to COMSTOR an update and keep current a complete
list of all persons to which Customer has granted access to the Terminal
facility.
II. TERM OF AGREEMENT, TERMINATION AND RENEWAL.
A. Customer's license to occupy each Collocation Space shall begin on the
"Requested Service Date", as set forth in paragraph 3 of each individual
Collocation Schedule or on the date COMSTOR completes the build-out of the
Space, whichever is later. The minimum term of the Customer's license to
store equipment in the Terminal Facility shall be the period set forth in
the Collocation Schedule (the "Minimum Term").
B. If COMSTOR fails for any reason to grant access to the Space to Customer
on or before the Requested Service Date (July 6, 1998 for 110v and July
13, 1998 for 220v) this Agreement shall not be void or voidable.
Notwithstanding the foregoing if COMSTOR fails to grant access to the
Space to Customer within a thirty (30) day period after such Requested
Service Date (due to any reason other than the acts or omissions of
Customer), Customer may upon written notice to COMSTOR, declare relevant
Collocate Schedule null and void with no further obligation by Customer
under the relevant Collocate Schedule, and COMSTOR shall refund all fees
and charges paid in advance by Customer. In the event that COMSTOR is
delayed in granting access to the Space to Customer for any reason other
than the acts or omissions of Customer, Customer shall not be obligated to
pay the Collocation Fee or Service Fee (as hereinafter defined) hereunder
until such time as COMSTOR tenders possession of the Space to the
Customer. Except as provided herein, COMSTOR shall not be liable to
Customer in any way as a result of such delay or failure to tender
possession.
C. Subject to the conditions specified in this Section II, Customer shall
have the option, upon at least thirty (30) days' prior written notice to
COMSTOR, to renew its license to store Equipment in the Space (the
"Renewal Periods") for the period(s) of time and on the terms and
conditions which are set forth in this Agreement and the Collocation
Schedule relevant thereto. The Minimum Term and any Renewal Periods are
sometimes collectively referred to as the "Term".
D. Customer's option to renew its license to store Equipment in the Space,
pursuant to the Terms hereof shall be contingent on the election by
COMSTOR to continue to own or lease the
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Premises in which the Space is located for the duration of the Renewal
Period(s), such election to be exercised at the sole discretion of
COMSTOR. If COMSTOR elects to exercise such option, COMSTOR will provide
Customer 120 Days prior written notice before the end of the Term.
E. Following the expiration of the first twelve months of the Term, Customer
shall have the right to terminate this Agreement upon one hundred twenty
(120) days' prior written notice to COMSTOR, subject to payment of the
termination charges set forth in Paragraph 10 of the annexed Collocation
Schedule.
F. Upon termination or expiration of the Term for each Space, Customer agrees
to remove the Equipment and other property which has been installed by
Customer or Customer's agents. In the event such Equipment or property has
not been removed within thirty (30) days of the effective termination or
expiration date, COMSTOR shall have the right, upon an additional 15 day
notice to Customer, to remove, relocate, or otherwise store such Equipment
or property at Customer's expense.
G. In the event the Terminal Facility becomes the subject of a taking by
eminent domain by any authority having such power, COMSTOR shall have the
right to terminate this Agreement. COMSTOR shall attempt to give Customer
reasonable advance notice of the removal schedule. Customer shall have no
claim against COMSTOR for any relocation expenses, any part of any award
that may be made for such taking or the value of any unexpired term or
renewed periods that results from a termination by COMSTOR under this
provision, or any loss of business from full or partial interruption or
interference due to any termination. However, nothing contained in this
Agreement shall prohibit Customer from seeking any relief or remedy
against the condemning authority in the event of an eminent domain
proceeding or condemnation which affects the Space.
III. PRICES AND PAYMENT TERMS.
A. Customer shall pay COMSTOR monthly recurring fees (the "Recurring Fees")
which shall include charges for use and equipment storage in the Space
(the "Collocation Fees"), as well as cross-connect fees (the
"Cross-Connect Fees") and power charges (the "Power Charges"), if
applicable. In addition to any Recurring Fees, Customer shall be charged
non-recurring fees for build-out of the Space (the "Build-Out Charges"),
including, where applicable, cross-connect installation fees and/or
Dispatch Labor Charges, where applicable, all of which shall be set forth
in the relevant Collocation Schedule and the Exhibits thereto. If Customer
requests that COMSTOR provide services not delineated herein or in the
collocation schedules at any time during the Term, such services shall be
provided at prices mutually negotiated by the parties.
B. Prices do not include taxes, except as specifically stated herein.
Customer agrees to pay or reimburse COMSTOR for any applicable taxes that
are levied based on the transactions hereunder, exclusive of COMSTOR's
income taxes and real estate taxes on the Terminal Facility. Any such
charges shall be invoiced and payable within the payment terms of this
Agreement. COMSTOR agrees to provide Customer with reasonable
documentation to support invoiced amounts for taxes within thirty (30)
calendar days of receipt of a Customer written request.
C. The Collocation Fee and/or Power Charges shall be increased by any
increases or decreased by any decreases, incurred by COMSTOR and required
under the lease relevant to the Premises in which the Space is located.
Customer shall pay to COMSTOR its pro rata share of any such increases
based on the number of square feet of the Space compared to the number of
square feet leased by COMSTOR under the applicable lease. COMSTOR shall
notify Customer of any such increase as soon as practicable. If such
increases in the aggregate during the Term
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exceed 3% then Customer shall have the right to terminate this agreement
upon ninety (90) days written notice from COMSTOR, provided such notice is
delivered to COMSTOR within thirty (30) days of COMSTOR's notice to
Customer.
D. All Recurring Fees shall be invoiced in the beginning of each month
commencing on the first day of the Term as identified in the Collocation
Schedule and thereafter, on the first day of each calendar month. Charges
for partial months shall be prorated accordingly. All Recurring Fees shall
be payable net sixty (60) days from date of invoice. Late payments shall
be subject to late charges if payment is not received within the payment
term period. The late payment charges will be calculated based on 1.5% per
month of the unpaid amount.
E. Customer agrees to reimburse COMSTOR for all reasonable repair or
restoration costs associated with damage or destruction caused by
Customer's personnel, Customer's agents, Customer's customers, or
Customer's suppliers/contractors or Customer's visitors during the Term or
as a consequence of Customer's removal of the Equipment or property
installed in the Space.
IV. ADDITIONAL TERMS GOVERNING USE OF COLLOCATION SPACE; INSTALLATION OF
EQUIPMENT.
A. Before beginning any delivery, installation, replacement, alteration or
removal work, Customer must obtain COMSTOR's written approval of
Customer's choice of suppliers and contractors. COMSTOR may request
additional information before granting approval and may require scheduling
changes and substitution of suppliers and contractors as conditions of its
approval. Approval by COMSTOR is not an endorsement of Customer's supplier
or contractor, and Customer will remain solely responsible for the
selection of the supplier or contractor and all payments for construction
work.
B. Customer shall not make any construction changes or material alterations
to the interior or exterior portions of the Space, including any cabling
or power supplies for the Equipment, without obtaining COMSTOR's written
approval for Customer to have the work performed or have COMSTOR perform
the work.
C. Customer's use of the Space, installation of Equipment and access to the
Terminal Facility shall at all times be subject to Customer's adherence to
the generally accepted industry standards, security rules and rules of
conduct established by COMSTOR for the Terminal Facility. Customer agrees
not to erect any signs or devices to the exterior portion of the Space
without submitting the request to COMSTOR and obtaining COMSTOR's written
approval, which will not be unreasonably withheld.
D. Customer may not provide or make available to any third party space within
the Collocation Space other than Customers own collocation customers
without COMSTOR's prior written consent. If Customer should provide or
make available to any third party except its own collocation customers
space within the Collocation Space without obtaining the written consent
of COMSTOR, Customer shall be in breach of this Agreement and COMSTOR may
pursue any legal or equitable remedy, including but not limited to the
immediate termination of the license pursuant to Section VI, below.
E. Customer shall be permitted to utilize the areas of Collocation Space or
Terminal Facility designated as "Personnel Areas" on "DIAGRAM 1" as
temporary workspace to house employees, and may not house or store any
server equipment in such areas, other than desktop computers and other
system monitoring computers. This agreement is neither a rental agreement
nor sublease and shall convey none of the associated or implied rights or
privileges of either to Customer.
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V. INSURANCE.
Customer agrees to maintain, at Customer's expense, during the entire time this
Agreement is in effect for each Collocation Space (i) Comprehensive General
Liability Insurance in an amount not less than One Million Dollars
($1,000,000.00) per occurrence for bodily injury or property damage, (ii)
Employer's Liability in an amount not less than Two Hundred Thousand Dollars
($200,000.00) per occurrence, and (iii) Worker's Compensation in an amount not
less than that prescribed by statutory limits. Prior to storing equipment in the
Collocation Space, Customer shall furnish COMSTOR with certificates of insurance
which evidence the minimum levels of Customer's insurance coverage as set forth
herein and which names COMSTOR as an additional insured.
VI. DEFAULT AND TERMINATION.
A. COMSTOR may declare the license granted hereunder to be null and void,
terminate this agreement, and, without incurring liability therefor,
prohibit Customer from using the license if (a) Customer becomes
insolvent, is generally unable to pay its debts as they become due or is
adjudicated bankrupt by a court of competent jurisdiction ; (b)
proceedings are commenced by or against Customer in any court under a
bankruptcy act or for the appointment of a trustee, receiver of Customer's
property or establishment of a debtor-in-possession, and the same is not
dismissed within (60) days (c) Customer defaults in paying all or part of
the Recurring Fees, late charges or interest under Article III hereof when
due, or (d) Customer fails to perform any other covenant, agreement,
condition, rule, or regulation now or subsequently contained herein for
more than 30 days after COMSTOR gives written notice thereof. Such period
of 30 days may be extended by COMSTOR in its sole reasonable discretion
where the Customer is unable to cure such default within such period due
to facts and circumstances beyond its control despite proceeding in good
faith using its best efforts. Such sole discretion shall not be withheld
unreasonably. Failure by COMSTOR to exercise any of its rights hereunder
shall not constitute a waiver of any past, present or future right or
remedy.
B. If COMSTOR fails to perform its obligations hereunder, Customer may, at
its sole option and with written notice, issue a default termination
letter to COMSTOR to cure the default condition. If the default condition
is not remedied or if COMSTOR has not commenced curing such default
condition within the time period specified in the notice letter and
diligently continues curing such default to completion, which shall not be
less than thirty (30) days, Customer may then, without the necessity of
any further notice, discontinue performance and terminate this Agreement,
as applicable, for default and pursue any other remedies available at law
or in equity. Customer's failure to exercise any of its rights hereunder
shall not constitute or be construed by COMSTOR as being a waiver of any
past, present, or future right or remedy.
C. Beginning at any time after November 1, 1998 COMSTOR reserves the right to
rescind the license granted by this Agreement for any reason upon 120 days
prior written notice to Customer delivered no sooner than November 1,
1998; upon a determination that is in its best interest to terminate its
occupancy and use of the Collocation Space. If it terminates such
occupancy and use, it shall use its best efforts to arrange for the
occupancy and use of the Collocation Space by Customer without the
involvement of COMSTOR upon such terms and conditions as may be available
in the market.
VII. WARRANTIES, REMEDIES AND DISCLAIMERS.
A. COMSTOR shall, at COMSTOR's own expense, defend, indemnify and hold
Customer harmless against any and all claims that the Collocation Space
used by Customer hereunder infringes on any third party's property or
ownership rights. COMSTOR shall, at COMSTOR's sole option, either (i)
settle any such claim, (ii) secure valid rights for Customer's continued
use, or (iii)
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furnish equivalent Collocation Space satisfactory to Customer within the
terminal facility, that is not infringing and that can be used to satisfy
the original specifications in COMSTOR's determination. This warranty and
remedy by COMSTOR shall be valid only if (i) Customer gives COMSTOR prompt
written notice upon Customer's receipt of any such claim, (ii) Customer
provides COMSTOR with all pertinent information in its possession relative
to such claim and (iii) COMSTOR shall have sole control over the
settlement or defense of such claim.
B. Except for the warranties set forth in this Article, there are no
warranties, whether express, implied, oral, or written, with respect to
the Collocation Space or services covered or furnished pursuant to this
Agreement, including but not limited to, any implied warranty of
merchantability or fitness for a particular purpose. Moreover, the
remedies provided in this Article are exclusive and in lieu of all other
remedies.
VIII. EXCUSED PERFORMANCE.
Neither Party shall be liable to the other Party under this Agreement for any
failure or delay in performance that is due to causes beyond its reasonable
control, including but not limited to, acts of nature, governmental actions,
fires, civil disturbances, interruptions of power, or transportation problems.
IX. ASSIGNMENT OR TRANSFER.
Customer shall not assign or transfer the rights or obligations associated with
this Agreement, in whole or in part, without COMSTOR's prior written consent.
X. PUBLICITY.
Customer shall not use COMSTOR's name in publicity or press releases without
COMSTOR's prior written consent.
XI. LIMITATION OF LIABILITY.
A. In no event shall COMSTOR or any of its officers or employees be liable
for any loss of profit or revenue by Customer or for any consequential,
incidental, special, punitive or exemplary damages incurred or suffered by
Customer, nor for any loss of power or HVAC interruption, even if COMSTOR
has been advised of the possibility of such loss or damage.
B. Customer shall indemnify and hold harmless COMSTOR, its officers and
employees, servants, agents, affiliates and parent, from and against any
and all claims, cost, expenses or liability arising out of Customer's use
of the Collocation Space or Customer's operation of the Equipment within
the Collocation Space, plus reasonable attorney fees incurred by the Party
who incurred such loss or damage.
C. Notwithstanding anything to the contrary contained herein, each Party
shall be liable to the other for damage or loss to any property or persons
if such damage or loss is caused by gross negligent or willful act or
omission of such Party or its officers, employees, servants, agents,
affiliates or contractors or by the malfunction of any equipment supplied
or operated by said Party.
XII. SURVIVAL PROVISIONS.
The Parties rights and obligations which by their nature would extend beyond the
termination, cancellation or expiration of this Agreement shall survive such
termination, cancellation or
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expiration.
XIII. NOTICES.
All notifications made hereunder shall be in writing and shall be delivered
either by certified mail, return receipt requested. (in which case notice is
effective 3 days after mailing) or by overnight courier ( in which case notice
is effective upon day of receipt). All notifications and transmittals to COMSTOR
issued pursuant to the provisions of this Agreement shall be sent to:
c/o Comstor Corporation Eisenhower, Tarby and Xxxxxx, P.C.
00000 Xxxxxxxx Xxxxx 00000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
ATTN: Xxx Xxxxxx, VP, Technology Attn: Xxxx Xxxxx, Councel
All formal notices and transmittals to Customer shall be sent to all three of
the following locations:
Sage Networks Sage Networks, Inc.
000 Xxxxx Xxxxxx 00 Xxxxxxx Xxxxxx
0xx floor D-Wing 00xx xxxxx
Xxxxxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
ATTN: Xxxxx Xxxxxxxx, COO ATTN: Xxxxx X. Xxxxx, General Counsel
Sage Networks, Inc.
0000 Xxxxxxxx Xxxxx
XxXxxx, XX 00000
ATTN: Xxxxx Xxxx, Dir. of Sales ESG
Either Party may change the notice address or addressee by providing prior
written notice.
XIV. APPLICABLE LAW.
This Agreement shall be governed by the laws of the Commonwealth of Virginia,
without regard to Virginia's choice of law principles.
XV. ENTIRE AGREEMENT.
This Agreement, including all Attachments, constitutes the entire agreement
between the Parties pertaining to the subject matter hereof and supersedes all
prior and contemporaneous agreements of such Parties in connection herewith.
Customer acknowledges that it has not been induced to enter into this Agreement
by any representative or promise not specifically expressed in this Agreement.
Any modification made hereto shall not be valid and binding unless it is in
writing and signed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
COMSTOR CORPORATION SAGE NETWORKS, INC.
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxxx
--------------------------------- ---------------------------------
Xxxxx Xxxxxx Xxxxxxx X. Xxxxxxx,
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President Co-Chairman
------------------------- -------------------------
Date Date
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COLLOCATION SCHEDULE NO. 1
This Collocation Schedule is made as of this 2nd day of July, 1998 (the
"Effective Date") and subject to all definitions, terms and conditions of that
certain Agreement for Terminal Facility Collocation Space , dated as of the 2nd
dayt of July 1998 the ("Agreement") by and between COMSTOR Corporation
("COMSTOR") and SAGE NETWORKS ("Customer").
1. ADDRESS OF TERMINAL FACILITY: 2. SPACE ALLOCATION
0000 Xxxxxxxx Xxxxx As designated in "DIAGRAM 1"
Suite B1
XxXxxx, XX 00000
3. MINIMUM TERM: 36 Month(s) 4. RENEWAL PERIOD:
Requested service date: 6 July 1998 Month to Month
5. MONTHLY RECURRING SERVICE FEES
Diagram 1 Striped Area in B22 ** US / month - Equipment(1,2)
Diagram 1 Striped Area in B23 ** US / month - Equipment(1,2)
Diagram 1 Striped Area in X00, X00, & B48 ** US / month - Personnel(1,2)
AC Power @ 110VAC ** / month / available AMP (3)
AC Power @ 208VAC ** / month / available AMP (3)
(1) As per terms outlined in paragraph IV.E
(2) Reflect multi-year ** discount of **
(3) Does not apply to power provided in personnel areas
6. NON-RECURRING FEES
208 VAC Power Build-Out ** US (208 VAC to 16 Racks)
110 VAC Power Build-Out ** US (110 VAC to 20 Racks)
7. ENVIRONMENT & POWER
Areas in B22 and B23 will be environmentally controlled 24x7 at STP.
COMSTOR will provide 16 x 208VAC @ 20 AMP and 120 x 10VAC @ 20 AMP
circuits, backed up by Generator, which will be terminated in B22 and B23
at rack slots designated by Customer.
8. CABLING
Customer will be responsible for all communications cabling between Customer
equipment and from SAGE equipment to non-COMSTOR carriers. Cable type and path
must be approved by COMSTOR prior to installation.
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9. SCHEDULE FOR COMPLETION
Terminal Facility Space will be available 6 July 1998, however Generator
backed up power may not be available until 15 September 1998. COMSTOR will
work diligently and make best effort to provide generator backup prior to
15 September 1998 if possible.
10. TERMINATION
Should customer terminate this agreement, for any reason, prior to MINIMUM
TERM as designated in paragraph 3 of this Schedule, customer shall be
liable to COMSTOR for termination charges as outlined in the following
schedule:
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Terminated Within Termination Charges
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0-12 months from start of TERM Difference between ** and the **
(excluding power fees and Access Fees)
paid by Customer through termination
date
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13-24 months from start of TERM Customer will pay COMSTOR **
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25-35 months from start of TERM Customer will pay COMSTOR **
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36 or more months from start of TERM **
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COMSTOR CORPORATION SAGE NETWORKS, INC.
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxxx
--------------------------------- ---------------------------------
Xxxxx Xxxxxx DATE Xxxxxxx X. Xxxxxxx DATE
President Co-Chairman
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