EXHIBIT 10.1
IN CONSIDERATION OF THE ABOVE, Sublessor and Sublessee agree as
follows:
1. DEMISE. Sublessor hereby subleases and demises to Sublessee
and Sublessee hereby takes and hires from Sublessor the Premises, subject to the
provisions hereinafter set forth.
2. TERM. The term of this Sublease shall commence on January
1, 2003 (the "Commencement Date"), and shall expire on the earlier of (a)
midnight on the day prior to the stated expiration date of the current term of
the Master Lease and (b) the date the Master Lease is terminated, if earlier.
The stated expiration date of the current term of the Master Lease is April 14,
2008. In the event Sublessor receives notice that the Master Lease is to be
terminated on a date earlier that the stated expiration date, Sublessor shall
provide Sublessee with a copy of such notice within 10 days of Sublessor's
receipt thereof. Sublessee may have access to the Premises prior to the
Commencement Date for purposes of preparing the Premises for Sublessee's use,
provided that (i) this Sublease shall have been executed by both Sublessor and
Sublessee, (ii) the Master Lessor shall have executed the Consent and Agreement
of Master Lessor referenced in Section 22 hereof and attached hereto, (iii) the
Sublessee shall have provided to Sublessor and Master Lessor certificates of
insurance evidencing the insurance required to be maintained pursuant to Section
8 hereof, (iv) the Sublessee shall have transferred all utilities into its own
name as provided in Section 4(d) hereof, and (v) all other terms and conditions
of this Sublease shall be applicable to Sublessee's use and occupation of the
Premises prior to the Commencement Date.
3. CONDITION AND USE. Sublessee accepts the Premises from
Sublessor in its present condition, "as is" and with all faults. Sublessee
acknowledges that Sublessor has made no representation, and that it has given no
warranty, to Sublessee in respect of the condition of the Premises or in respect
of the fitness thereof for Sublessee's intended uses or the quality or manner of
any services provided or to be provided by Master Lessor under the Master Lease.
Sublessee further acknowledges that Sublessor shall not be required to perform
or pay for any alterations, installations or other improvements of, on or about
the Premises for the benefit of Sublessee. Sublessee shall use the Premises only
for such purposes as are expressly permitted under the Master Lease and in a
manner consistent with the requirements and limitations set forth in the Master
Lease and for no other purpose without the prior written consent of Master
Lessor and Sublessor, the consent of the latter not to be unreasonably withheld.
Notwithstanding the foregoing, in no event shall Sublessee use the Premises for
the manufacture, storage or sale of hazardous substances or materials.
4. RENT AND OTHER CHARGES. Except as may be otherwise
expressly provided herein, Sublessor directs and Sublessee agrees it shall pay
Rent (as hereinafter defined) and all other amounts to be paid under this
Sublease directly to the Master Lessor. Sublessee shall pay, without notice or
demand and without abatement, deduction or offset, in lawful money of the United
States, in monthly payments in advance on or before the first day of each month,
beginning the Commencement Date, the following sums:
(a) monthly rent ("Rent") pursuant to the following schedule:
---------------------------------- ------------------ ------------------------
PERIOD MONTHLY RENT PER SQUARE FOOT RATE
---------------------------------- ------------------ ------------------------
January, 2003 $0.00 $0.00
---------------------------------- ------------------ ------------------------
February, 2003 - April, 2008 $8,944.83 $5.95
---------------------------------- ------------------ ------------------------
Rent for any partial month shall be prorated.
(b) all Additional Rent (as such term is used in the Master
Lease) and any other sum or amount due to the Master Lessor under the Master
Lease, provided that to the extent applicable in the determination of Additional
Rent, the Base Year for purposes of this Sublease shall be 2002 (as opposed to
the Base Year of 1998 under the Master Lease) and Sublessor shall be responsible
for and pay directly to Master Lessor any additional amounts owing to Master
Lessor for Additional Rent due to the different Base Year used in this Sublease.
(c) an amount, if any, equal to any separate utility charges
payable by Sublessor to any party, all as reasonably determined by Sublessor.
All of said payments shall be mailed or otherwise transmitted
to (or to such other address as the Master Lessor may designate by written
notice to Sublessor and Sublessee):
Xxxxxxx X. Xxxxxxxxxxx and
Xxxxxxx X. Xxxxxxxxx
(d) To the extent possible, Sublessee shall arrange for all
utilities which are separately metered to the Premises to be transferred to
Sublessee's name and account and shall pay the same to the charging utility
directly, as provided in Section 3.10 of the Master Lease.
(e) Concurrently with execution of this Sublease, Sublessee
shall pay to Sublessor the sum of $8.944.83 as a security deposit ("Security
Deposit") to be held by Sublessor without liability for interest and as security
for the full and faithful performance by Sublessee of Sublessee's covenants and
obligations under this Sublease. Sublessee agrees that the Security Deposit
shall not be considered an advance payment of rental or a measure of Sublessor's
damages in case of default by Sublessee. Upon the occurrence of default by
Sublessee, Sublessor may, from time to time, at Sublessor's option and without
prejudice to any other remedy, use and apply the Security Deposit to any or all
of: (i) any arrearages of rent; (ii) any other obligation of Sublessee; or (iii)
as reimbursement for any damage, injury, expense or liability caused to or
incurred by Sublessor by reason of any default. In the event Sublessor so
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applies any part of the Security Deposit, Sublessee shall immediately deposit
with Sublessor upon the request of Sublessor a sufficient sum to restore the
Security Deposit to the full amount stated above. If Sublessee fully complies
with all Sublessee's covenants and obligations under this Sublease, the Security
Deposit shall be returned to Sublessee upon the expiration of this Sublease.
5. SURRENDER OF PREMISES. Upon the expiration date or earlier
termination of this Sublease, Sublessee shall (a) surrender the Premises to
Sublessor in good condition and repair, broom-clean, ordinary wear and tear and
damage for which Sublessor under the Master Lease has no obligation to restore
or repair excepted and otherwise in the condition required by the Master Lease,
and (b) to the extent required of Sublessor or Sublessee under the Master Lease,
repair any damage to the Premises occasioned by the removal of Sublessee's trade
fixtures, furnishings, equipment and personal property which Sublessee may
remove to the extent permitted under the Master Lease. In the event Sublessee
remains in possession of the Premises after the expiration or termination of
this Sublease, such occupancy shall not be deemed an extension of the term of
this Sublease, provided that Sublessee shall remain obligated to pay all Rent
hereunder and Sublessee shall pay holdover rent at the rate specified for
payment of holdover rent under the Master Lease. In the event that Sublessee
shall holdover for any period after the expiration of the term of the Master
Lease, Sublessee shall be liable for any and all damages sustained by Sublessor
under the Master Lease on account of such holdover.
6. SUBORDINATION. This Sublease is subject and subordinate to
the Master Lease and to all matters to which the Master Lease is subject and
subordinate.
7. INDEMNIFICATION. Sublessor shall defend, indemnify and hold
Sublessee harmless from and against any and all losses, liabilities, claims,
causes of action, damages, costs and expenses (including attorneys' fees and
expert witnesses' fees) arising or resulting from (i) any intentional or
negligent act or omission of Sublessor or Sublessor's officers, agents,
employees, contractors, invitees or licensees (collectively "Sublessor's
Agents"), occurring or accruing during the term of this Sublease and/or (ii) any
breach occurring or accruing on or after the Commencement Date by Sublessor or
Sublessor's Agents of any term, condition or covenant under this Sublease or any
breach of any term, condition or covenant under the Master Lease occurring or
accruing during the term of this Sublease, except to the extent incorporated
herein as an obligation of Sublessee. In case any action or proceeding is
brought against Sublessee by reason of any such claim, Sublessor, upon written
notice from Sublessee, shall, at Sublessor's expense, resist or defend such
action or proceeding by counsel reasonably approved by Sublessee. Sublessee
shall defend, indemnify and hold Sublessor harmless from and against any and all
losses, liabilities, claims, causes of action, damages, costs and expenses
(including attorneys' fees and expert witnesses' fees) arising or resulting from
(i) any intentional or negligent act or omission of Sublessee or Sublessee's
officers, agents, employees, contractors, invitees or licensees (collectively
"Sublessee's Agents"), occurring or accruing during the term of this Sublease,
and/or (ii) any breach occurring or accruing on or after the Commencement Date
(or, if earlier, the date Sublessee takes possession of the Premises) by
Sublessee or Sublessee's Agents of any term, condition or covenant under this
Sublease or under the Master Lease to the extent incorporated herein as applying
to Sublessee, and/or (iii) any intentional or negligent act or omission of
Sublessee or Sublessee's Agents which constitutes a breach or creates an
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obligation for reimbursement or indemnification on Sublessor's part to Master
Lessor under the terms of the Master Lease. In case any action or proceeding is
brought against Sublessor by reason of any such claim, Sublessee, upon written
notice from Sublessor, shall, at Sublessee's expense, resist or defend such
action or proceeding by counsel reasonably approved by Sublessor. The foregoing
indemnities in this Paragraph 7 shall survive the expiration, cancellation or
termination of this Sublease.
8. INSURANCE. The Sublessee shall maintain at its expense
throughout the term of this Sublease, all insurance required by the Master Lease
as if the Sublessee were the "tenant" thereunder including without limitation
the insurance specified in Section 3.14 of the Master Lease. Each such policy
shall (a) name as the insureds thereunder, as their interests may be, the
Sublessor and the Sublessee, (b) by its terms, be cancelable or materially
altered only on at least thirty (30) days' prior written notice to Sublessor,
and (c) be issued by an insurer reasonably acceptable to Sublessor. To the
extent Master Lessor under the Master Lease may require Sublessee separately to
provide any evidence of insurance benefiting or naming Master Lessor as a named
or additional insured, Sublessee shall promptly, upon request of Sublessor,
cause such evidence of insurance to be issued and delivered to Master Lessor.
Any waiver of subrogation rights provided in the Master Lease shall not apply
between the parties hereto.
Sublessee and Sublessor each hereby relieve the other, and
waive their entire right of recovery against the other for loss or damage
arising out of or incident to the perils insured against by either party to the
extent of insurance proceeds actually received, which perils occur in, on or
about the Premises whether due to the negligence of Sublessor or Sublessee or
their agents, employees, contractors and/or invitees. Sublessee and Sublessor
shall give notice to their insurance carrier or carriers that the foregoing
mutual waiver of subrogation is contained in this Sublease.
9. OTHER PROVISIONS. Except for the paragraphs of the Master
Lease which relate to (i) the payment of rent, (ii) the term of the Master
Lease, (iii) any options to purchase the Master Lease Premises, renew the Master
Lease or expand the Master Lease Premises and (iv) any rights to assignment and
subletting, and to the extent not otherwise consistent with the agreements and
understandings expressed elsewhere in this Sublease or applicable only to the
original parties to the Master Lease, the provisions of the Master Lease are
hereby incorporated herein by reference on the following understandings:
(a) The term "premises" (or other word of similar
import) as used therein shall refer to the Premises.
(b) The terms "tenant" or "lessee" (or other word of
similar import) as used therein shall refer to Sublessee.
(c) The terms "lessor", "landlord" or "owner" (or
other word of similar import) as used therein shall refer to Sublessor.
(d) With respect to work, services, repairs,
utilities, common areas of the Building, repainting and restoration or the
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performance of other obligations required of or imposed upon Master Lessor under
the Master Lease, Sublessor shall have no obligation therefor, and Sublessor's
sole obligation with respect thereto shall be to request the same of Master
Lessor, upon request in writing by Sublessee. Sublessee may make such requests
directly of Master Lessor if Sublessee so elects.
(e) Except as otherwise provided in this Paragraph 9,
Sublessor and Sublessee shall perform and comply with the provisions of the
Master Lease incorporated herein with respect to the Premises to be performed
by, respectively, the "landlord" and "tenant" (or like words of similar import)
thereunder. Sublessee hereby assumes and agrees to perform all of the
obligations of the "tenant" under the Master Lease accruing or arising during
the term of this Sublease (but not prior to the commencement of the term
hereunder) in the manner and within the time required under the Master Lease as
if the Premises were the only space demised under the Master Lease. Sublessee
and Sublessor further covenant that neither will commit, nor permit to be
committed by any third party, any act or omission which would violate any
material term or condition of the Master Lease by it or on its behalf to be
performed, or be cause for termination of the Master Lease by Master Lessor.
Sublessee's obligations hereunder are to Sublessor and Sublessee shall have no
duties or obligations to Master Lessor under the Master Lease, except as may
otherwise be agreed to between Sublessee and Master Lessor or as specifically
provided in the Master Lease. Nothing contained in this Sublease shall confer
upon Sublessee any rights greater than those which Sublessor has under the
Master Lease.
(f) In connection with any alterations Sublessee
desires to make to the Premises, Sublessee shall obtain Sublessor's written
consent to the making of any such alterations prior to the undertaking thereof.
Such consent will not be unreasonably withheld or delayed by Sublessor, but may
be given subject to such conditions that Sublessor may reasonably impose
(including restricting the manner in which work is to be performed so as to
minimize any annoyance to or interference with business conducted by other
tenants, approval of Sublessee's plans and specifications, if any, contractors,
architects and engineers, posting of payment and completion bonds to complete,
or such other conditions as Sublessor may reasonably impose). If the consent of
Master Lessor is required under the Master Lease, Sublessee, with Sublessor's
cooperation and assistance, shall contact Master Lessor directly for Master
Lessor's consent and Sublessee shall not undertake any such alterations until
Master Lessor's consent is obtained.
(g) The obligations of Master Lessor under the Master
Lease shall remain the obligations of the Master Lessor under the Master Lease
and in no event shall Sublessee have any rights against Sublessor for breach by
Master Lessor of any such obligation. Sublessor shall have no obligation to
institute any action against Master Lessor, or to join in any action instituted
against Master Lessor by Sublessee, except that upon thirty (30) days prior
written request of Sublessee, and provided Sublessee fully indemnifies and holds
Sublessor harmless therefrom, Sublessor shall assign to Sublessee any claim it
may have against Master Lessor on account of any such default. Sublessor shall
have no obligation to cure any default by Master Lessor under the Master Lease.
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(h) Any default by Sublessee under the terms and
conditions of the Master Lease shall constitute a default under the terms and
conditions of this Sublease. Sublessor shall have all the rights and remedies
against Sublessee given to Master Lessor under the Master Lease and any other
rights and remedies to which Sublessor is entitled under applicable law.
Notwithstanding anything to the contrary contained in the Master Lease, the
period of time provided for the cure of any default by the Sublessor under the
Master Lease shall be deemed shortened by three (3) days less than the period
provided for the cure of such default in the Master Lease, if any, as to provide
Sublessor with the opportunity to cure any default of Sublessee hereunder which
would in turn constitute a default under the Master Lease, but Sublessor shall
have no obligation to cure any such default by Sublessee.
10. SUBLESSEE'S SIGN. Sublessee's rights to install and
maintain a sign on the Premises shall be limited to the provisions of the Master
Lease and shall otherwise be conditioned upon receipt of prior written consent
of Master Lessor, if so required under the terms of the Master Lease, in
addition to the receipt of the prior written consent of Sublessor.
11. ASSIGNMENT AND SUBLETTING. Subject to obtaining any
consents required under the Master Lease, Sublessee shall obtain Sublessor's
prior written consent to any assignment or subletting, which consent shall not
be unreasonably withheld or delayed. Notwithstanding the foregoing, Sublessee
shall not have the right to assign this Sublease or sublet all or any portion of
the Premises without first obtaining Master Lessor's prior written consent where
such consent is required under the terms of the Master Lease. No assignment of
this Sublease (whether or not Sublessor's consent is required) shall relieve
Sublessee of its obligations hereunder.
Each assignee of this Sublease shall assume all obligations of
Sublessee under this Sublease and shall be and remain liable jointly and
severally liable with Sublessee for the payment of Rent, and for the performance
of all the terms, covenants, conditions and agreements herein contained on
Sublessee's part to be performed. No assignment shall be binding on Sublessor
unless the assignee or Sublessee shall deliver to Sublessor a counterpart of the
assignment and an instrument in recordable form that contains a covenant of
assumption by the assignee reasonably satisfactory in substance and form to
Sublessor, consistent with the requirements of this paragraph, but the failure
or refusal of the assignee to execute such instrument of assumption shall not
release or discharge the assignee from its liability as set forth above.
12. OPTIONS TO RENEW; FIRST RIGHT OF PURCHASE. Sublessor shall
have no obligation, and Sublessee shall have no right or power, to exercise any
option to renew or extend the term of the Master Lease, or to exercise any right
of first offer or purchase.
13. NOTICES. Any notice, demand, consent or approval, request
or other communication or document to be provided pursuant to this Sublease
shall be in writing and shall be sent by registered or certified United States
mail, return receipt requested, or by personal delivery during normal business
hours with evidence of delivery requested, with all postage and fees prepaid, to
Sublessor or Sublessee, respectively, at the following addresses, or at such
other address as such party shall designate by written notice to the other
party. Such addresses are:
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Systems Integrators, Inc.
0000 Xxxxx Xxx Xxxxx
Xxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx
With a copy to Xxxxx Xxxx LLP
One Metropolitan Square
000 X. Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Intercard, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxxx
With a copy to: Xxxxxx Xxxxxxx, P.C.
000 Xxxxx Xxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Such notices shall be deemed to have been received and to be effective for all
purposes upon receipt or refusal to accept delivery at such address as indicated
on the return receipt or other record of delivery.
14. NO ORAL AGREEMENTS. There are no oral agreements or
understandings between the parties hereto affecting this Sublease. This Sublease
cannot be changed or terminated orally but only by an agreement in writing
signed by the party against whom enforcement or any waiver, change, modification
or discharge is sought.
15. GOVERNING LAW. This Sublease shall be governed and
construed in accordance with the laws of the State of Missouri.
16. INCORPORATION OF EXHIBITS. The Exhibits attached hereto
are incorporated herein by this reference.
17. CONSENT. When consent or approval of either Sublessor or
Sublessee is required by any provision of this Sublease or of the Master Lease
to the extent incorporated herein, such consent or approval shall not be
unreasonably withheld or delayed (unless otherwise expressly provided in this
Sublease (exclusive of any consent or approval requirement in the Master Lease
as incorporated herein)). Neither Sublessor nor Sublessee shall take or omit to
take any action requiring the Master Lessor's consent under the Master Lease
without first obtaining such consent in accordance with the terms of the Master
Lease. Upon request of Sublessee, Sublessor will request Master Lessor's consent
to any action or omission of Sublessee for which such consent is required.
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18. PARTIES NOT RELIEVED OF LIABILITY. No assignment of this
Sublease or subletting of the Premises, in whole or in part, as provided in this
Sublease, shall relieve either Sublessor or Sublessee of its obligations under
this Sublease.
19. SEVERABILITY. If any provision of this Sublease is
determined to be unenforceable for any reason, it shall be modified rather than
voided, if possible, in order to achieve the intent of Sublessor and Sublessee
to the extent possible. In any event, the remaining provisions shall be deemed
valid and enforceable to the maximum extent possible.
20. NOTICE OF DEFAULT. Sublessor and Sublessee shall,
respectively, promptly give written notice to the other of any notice of default
they may receive from Master Lessor under the Master Lease.
21. ATTORNEY'S FEES. In the event of any legal action or
proceeding to enforce the terms of this Sublease, the prevailing party shall be
entitled to recover its reasonable attorney's fees, costs and expenses.
22. MASTER LESSOR'S CONSENT. This Sublease shall be contingent
upon the Master Lessor executing the Consent and Agreement of Master Lessor (the
"Consent") attached hereto on or before [__________, 20____], and in the event
the Master Lessor does not execute the same within such time period, this
Sublease shall be null and void and of no further force and effect. By executing
this Sublease, Sublessee agrees to be bound by the terms of the Consent with
respect to attornment to the Master Lessor in the event of a bankruptcy
affecting Sublessor.
23. PERSONAL GUARANTY. This Sublease shall be contingent upon
the delivery by Xxx Xxxxxxx of his personal guaranty securing the performance of
Sublessee's obligations hereunder in favor of Sublessor, in form and substance
satisfactory to Sublessor.
24. COUNTERPARTS. This Sublease may be executed in any number
of counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
25. BROKER. Sublessor warrants that it has had no dealings
with any broker or agent in connection with this Sublease, other than CB Xxxxxxx
Xxxxx, Inc., whose commission shall be the sole responsibility of Sublessor.
Sublessor covenants to pay, hold harmless and indemnify Sublessee from and
against any and all cost, expense or liability for any compensation, commissions
or charges claimed by any agent or broker with which it has had dealings or
otherwise by reason of any breach of said warranty. Sublessee warrants that it
has had no dealings with any broker or agent in connection with this Sublease.
Sublessee covenants to pay, hold harmless and indemnify Sublessor from and
against any and all cost, expense or liability for any compensation, commissions
or charges claimed by any agent or broker with which it has had dealings or
otherwise by reason of any breach of said warranty.
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IN WITNESS WHEREOF, the parties have entered into this
Sublease as of the day and year first above written.
SUBLESSOR: SYSTEMS INTEGRATORS, INC.,
a Missouri corporation
By:
Its:
SUBLESSEE: INTERCARD, INC.,
a Missouri corporation
By:
Its:
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CONSENT OF MASTER LESSOR
Reference is made to that certain Lease Office/Warehouse
Building dated April 15, 1998 (as the same may have been amended from time to
time, the "Master Lease"), between Xxxxxxx X. Xxxxxxxxxxx and Xxxxxxx X.
Xxxxxxxxx (collectively, the Master Lessor"), as landlord, and System
Integrators, Inc., a Missouri corporation, as tenant. Subject to Master Lessor's
execution of this Consent of Master Lessor, System Integrators, Inc., as
sublessor, and Intercard, Inc., as sublessee, have entered into a sublease (the
"Sublease") of the premises which are the subject of the Master Lease. Pursuant
to Section 3.09 of the Master Lease, Master Lessor hereby grants its consent to
the Sublease and acknowledges and consents to the terms thereof. Master Lessor
acknowledges that the Master Lease is in full force and effect, and that there
are no events of defaults outstanding under the Master Lease.
The Master Lessor agrees to provide written notice to
Sublessor of any failure by Sublessee to pay rent or any other obligation to be
paid or performed by Sublessee hereunder, and shall provide Sublessor with an
additional 10 days to cure the same before declaring a default under the terms
of the Master Lease.
Master Lessor additionally agrees that in the event that the
Sublessor shall file any petition in bankruptcy or commences any other
proceeding relating to Sublessor under any reorganization, arrangement,
adjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, or has commenced against it any such proceeding which remains
undismissed for a period of thirty (30) days (it being understood that Master
Lessor shall retain all rights and remedies against Sublessor under the Master
Lease), provided that Sublessee is not then in default under the Sublease beyond
any applicable cure periods, then (i) Sublessee's use, possession and enjoyment
of the Premises shall not be terminated, disturbed, diminished or in any way
adversely affected by reason of termination of the Master Lease or any other
action or proceeding taken by Master Lessor with respect to Sublessor's interest
in the Premises and (ii) Sublessee shall attorn to and be bound to Master Lessor
as its landlord, and Master Lessor shall recognize Sublessee immediately as its
tenant, under a direct lease deemed to have the same terms and conditions as the
Master Lease (the "Direct Lease"); and Sublessee and Master Lessor shall execute
such further assurances and instruments as each may reasonably require in order
to memorialize the Direct Lease. Sublessee, by executing the Sublease, has
agreed to by bound by the foregoing.
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