Exhibit 10.19(b)
FIRST AMENDMENT TO LEASE
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FIRST AMENDMENT TO LEASE dated the 14th day of January, 1997 (this "First
Amendment") by and between LEXREAL ASSOCIATES, a New York general partnership,
as Landlord (the "Landlord") and YOUNG BROADCASTNG, INC., a Delaware
corporation, as Tenant (the "Tenant").
W I T N E S S E T H:
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Preliminary Statement
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WHEREAS, by Lease dated March 29, 1990 (the "Lease"), Tenant leased from
Landlord certain premises consisting of the forty-seventh (47th) floor of the
building known as 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Building"). Such premises (referred to in the Lease as the "Premises") are
herein referred to as the "Initial Premises"; and
WHEREAS, Landlord and Tenant desire further to expand the size of the
Premises by adding to the Initial Premises certain office space on the twenty-
second (22nd) floor of the Building more particularly described on the "Floor
Plan With Respect To The First Additional Premises" attached hereto (the "First
Additional Premises").
NOW THEREFORE, in consideration of Ten Dollars ($10.00) and other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant confirm and agree as follows:
1. LEASE TERM WITH RESPECT TO THE FIRST ADDITIONAL PREMISES. Landlord and
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Tenant agree that the Lease Term with respect to the First Additional Premises
shall commence on the earlier of (a) the Substantial Completion Date with
respect to the First Additional Premises or (b) the date upon which Tenant first
occupies all or any portion of the First Additional Premises for the conduct of
its business operations (the "First Additional Premises Commencement Date"), and
shall end on June 30, 2002 (the "First Additional Premises Expiration Date"), or
shall end on such earlier date upon which the Lease Term may expire or be
terminated pursuant to any of the conditions of limitation or other provisions
of the Lease, as amended by this First Amendment, or pursuant to law.
2. CONDITION OF THE FIRST ADDITIONAL PREMISES.
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(a) The provisions of Article 4 and Exhibit C of the Lease shall apply,
mutatis mutandis, to the construction of the First Additional Premises with the
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following revisions thereto:
(i) All references to the "Premises" shall mean the First
Additional Premises and all references to the "Commencement Date"
shall mean the First Additional Premises Commencement Date.
(ii) Schedule C-1 (Landlord's Work) is hereby deleted and "Landlord's Work"
shall mean (i) the construction of such demising walls as are necessary to
separate the First Additional Premises from the balance of the floor, (ii) the
installation of one building standard entry door to the First Additional
Premises, (iii) the building standard painting of the First Additional Premises
and (iv) the installation of new building standard carpet in the First
Additional Premises.
(iii) In Section 4.2(c), the parenthetical "(including the contractor's and/or
subcontractors' sign-offs necessary for Tenant's architect to obtain an A-23
from the City Building Department)" is deleted.
(iv) The second grammatical paragraph of Section 4.2(c) is amended to provide
that the preliminary notice of the estimated Substantial Completion Date shall
be given by Landlord to Tenant at least seven (7) days and not more than thirty
(30) days prior to the estimated Substantial Completion Date.
(v) In the fourth sentence of Section 4.3, the words "member of the firm of
Xxxxxx Xxxxxx Xxxxxxx, or to such other" are deleted.
(vi) In Exhibit C, the "Plan Submission Date" shall mean the date of this First
Amendment.
(vii) Section 2(b) of Exhibit C is deleted.
(viii) All references to the "Approved Contractor" in Exhibit C are revised to
read "the contractor".
(ix) "Landlord's Construction Representative" shall mean Xxxxxx Hill, Boston
Properties, Inc., with an address at the Building, and "Tenant's Construction
Representative" shall mean Xxxxx Xxxxxxxx, Xxxxx Broadcasting, Inc., with an
address at the Building.
(x) Section 5 of Exhibit C is deleted and the following substituted therefor:
"Landlord, on Tenant's behalf at Tenant's sole cost and expense, shall file, or
cause to be filed, with the appropriate governmental authority or authorities,
the Plans and Specifications and shall take whatever action shall reasonably be
necessary to obtain and maintain all governmental permits, authorizations,
approvals and signoffs which may be required in connection with the Work. Tenant
shall cooperate with Landlord in connection with the aforesaid."
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(xi) In Section 6(a)(v) of Exhibit C, the phrase "in excess of ninety (90) days
after Landlord authorizes its contractor to proceed with the Work" is deleted
and the following substituted therefor: "in excess of that required for building
standard items".
(xii) In the second and third sentences of Section 7 of Exhibit C, the words
"five (5) Operating Days" are changed to "two (2) Operating Days".
(xiii) In the second sentence of Section 9 of Exhibit C, the words "seven (7)
Days" are changed to "two (2) Operating Days".
(xiv) Section 10 of Exhibit C is deleted and the following substituted therefor:
"10. Landlord's Performance of the Work; Tenant's Cost.
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(a) Landlord shall perform the Work in accordance with Tenant's
approved Plans and Specifications. Landlord's Work shall be Without cost to
Tenant, but Tenant, prior to and during the progress of the Work, shall pay, as
Additional Rent, Tenant's Cost. Upon Landlord's reasonable estimate of Tenant's
Cost following approval by Landlord of the Plans and Specifications, Tenant
shall promptly pay to Landlord (or, at Landlord's election, to Landlord's
general contractor or construction manager), fifty percent (50%) of such
estimated Tenant's Cost, and the balance in installments, reasonably specified
by Landlord, within ten (10) days after rendition of bills therefor by Landlord,
so that the full amount thereof shall be paid during the progress of the Work
and the balance, if any, upon demand after the Substantial Completion Date.
(b) Within a reasonable time (considering the amount of detail
required and so as not to affect the time table of the work involved) after
receipt of any request by Tenant to change the Plan or Specification, Landlord
shall give notice to Tenant of Landlord's estimate of the amount, if any, of
Tenant's Cost, including any Change Cost, arising therefrom. Landlord's
representatives shall be available to Tenant to discuss such estimate. Tenant
shall be deemed to have accepted such estimated amount unless within two (2)
Operating Days after receipt thereof Tenant shall give notice to Landlord in
detail of any disagreement therewith, in which event Landlord and Tenant shall
attempt to resolve such disagreement within three (3) additional Operating Days.
If no such notice by Tenant is given, or if agreement is reached, then the
estimated amount stated in Landlord's notice, or
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the amount agreed upon, as the case may be, shall thereafter be deemed accepted
as an estimate, by both Landlord and Tenant. If such notice by Tenant is given
and no agreement is reached, Landlord shall nevertheless proceed with the Work,
but Tenant may direct Landlord to omit any item thereof, subject, however, to
Landlord's right to withdraw its approval of the Plans and Specifications by
reason of any such omission.
(c) Landlord shall use reasonable efforts to obtain any Work at a
reasonable cost to Tenant, but, in all events, Tenant shall pay Tenant's Cost of
any Work. In connection with the foregoing, (i) Landlord shall consult with
Tenant, and obtain Tenant's input for the selection of, and costs or fees
payable to, the general contractor, architect, and any significant trade
contractor, vendor, consultant or engineer performing any of the Work, (ii)
Landlord shall keep Tenant's Construction Representative advised as to the
status of the Work, and Tenant's Construction Representative shall be entitled
to attend project meetings relating to the Work, and (iii) the Work shall be
conducted by Landlord on an "open book" basis. Tenant's Construction
Representative shall have reasonable access to Landlord's books and records
relating to the Work (including those books and records relating to Tenant's
Cost). Nothing contained in this subparagraph (c) shall permit Tenant to delay
the completion by Landlord of any of the Work, whether or not the cost thereof
is in dispute. If at any time any of the Plans and Specifications are changed
by Tenant so as to eliminate or change any item of the Work in progress of
engineering, fabrication or construction, the progress of such engineering,
fabrication or construction shall not be stopped or altered until Tenant directs
such action by a notice containing any acceptance by Tenant of any addition to
Tenant's Cost which may result therefrom."
(xv) Section 13 (Credit Towards Tenant's Costs) of Exhibit C is deleted.
(xvi) In addition to the matters set forth in Section 6(a) of Exhibit C,
Tenant's failure to authorize Landlord to commence performance of the Work on or
before January 15, 1997 shall be deemed a Delay Caused By Tenant.
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3. RENT; TENANT'S SHARE; BASE TAXES; BASE OPERATING EXPENSES.
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(a) Annual Fixed Rent. Effective as of the First Additional Premises
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Commencement Date, "Exhibit J" to the Lease is amended by substituting in lieu
thereof a new "Exhibit J" as attached hereto.
(b) Tenant's Share. Effective as of the First Additional Premises
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Commencement Date, Tenant's Share shall mean:
(i) 0.77% with respect to the Initial Premises; and
(ii) 0.20% with respect to the First Additional Premises.
(c) Payment of First Month's Rent. Tenant has, simultaneously with the
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execution and delivery of this First Amendment, paid to Landlord an amount equal
to one-twelfth of the Annual Fixed Rent with respect to the First Additional
Premises, to be applied to the first monthly installment of Annual Fixed Rent
with respect to the First Additional Premises. Landlord shall hold the amount
paid by Tenant under this subsection in trust until the same is applied pursuant
to this First Amendment or any other provision of the Lease as amended by this
Amendment.
(d) Rent Concession. Landlord waives payment of Annual Fixed Rent
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attributable only to the First Additional Premises for the period from and
including the First Additional Premises Commencement Date to and including March
31, 1997. The rent concession provisions of Section 5.5 of the Lease are not
applicable to payments of Annual Fixed Rent and Additional Rent attributable to
the First Additional Premises.
(e) Outside Completion Date. If the First Additional Premises
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Commencement Date shall not have occurred on or before March 1, 1997 (the
"Outside Completion Date"), which date shall be extended as provided in Section
4.2 of the Lease as amended herein by reason of any Delay Caused by Tenant,
without limit as to time and without limiting Landlord's other rights on account
thereof, and/or by reason of any event or occurrence of the nature described in
Section 14.3 of the Lease, there shall be added to the rent concession period
provided for in Section 3(d) above, a number of days equal to the number of days
from the date following the Outside Completion Date to and until the First
Additional Premises Commencement Date. Such extension of the rent concession
period shall be Tenant's sole and exclusive remedy for Landlord's failure to
cause the First Additional Premises Commencement Date to occur within such time.
Subject to the foregoing, Tenant hereby waives any right to rescind this First
Amendment or the Lease under Section 223-a of the New York Real Property Law or
any successor statute of similar import then in force and further waives the
right to recover any damages which may result from Landlord's failure to
complete Landlord's Work and/or Tenant's Work, or to deliver
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possession of the First Additional Premises to Tenant on or before the Outside
Completion Date.
(F) Base Taxes and Base Operating Expenses. Landlord and Tenant confirm and
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agree as follows:
(i) Base Taxes shall mean:
(A) Nine Million Three Hundred Sixty-Four Thousand Seven
Hundred Forty-Four and 40/100 Dollars ($9,364,744.40) with
respect to the Initial Premises; and
(B) The actual Taxes for the 1996-1997 Tax Year with respect
to the First Additional premises.
(ii) Base Operating Expenses shall mean:
(A) Five Million Eight Hundred Seventy-Eight Thousand Three
Hundred Eighty-Six and 88/100 Dollars ($5,878,386.88) with
respect to the Initial Premises; and
(B> The actual Operating Expenses for the 1997 Operating Year
with respect to the First Additional Premises.
4. ELECTRICITY. The provisions of Section 16.1 of the Lease shall not
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apply to the First Additional Premises. Effective as of the First Additional
Premises Commencement Date, solely with respect to the First Additional
Premises, Tenant shall pay to Landlord an Electricity Charge as determined below
with respect to the First Additional Premises. Accordingly, a new Section 16.1.1
is added to the Lease at the close of Section 16.1 as follows:
16.1.1 TENANT TO PURCHASE ELECTRICITY; FIRST ADDITIONAL PREMISES.
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(a) Landlord shall furnish electricity to the First Additional Premises
for a charge to Tenant initially of Five Thousand Three Hundred Fifty-One
and 50/100 Dollars ($5,351.50) (the "Electricity Charge") per annum, which
shall be adjusted from time to time in accordance with the provisions of
this Section 16.1.1 and shall be payable on the first day of each and every
calendar month during the Lease Term, and otherwise payable in the same
fashion herein provided for the payment of Annual Fixed Rent.
(b) The Electricity Charge is based upon Landlord's assumption that
Tenant's initial electrical installation will not result in a total
electrical consumption for lighting
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and equipment in excess of 0.04 KWH per day, per rentable square foot of the
First Additional Premises, and that except for office cleaning, Tenant will use
electric energy only during Operating Hours. Accordingly, (i) if Tenant's
initial electrical installation exceeds such criteria, or (ii) if there shall be
a change in the space constituting the First Additional Premises, or (iii) if
Tenant makes material use of electricity during hours other than Operating
Hours, or (iv) if Tenant after completion of its initial installation adds or
subtracts any machinery, appliances or equipment which materially increases or
decreases the aggregate electrical load in the First Additional Premises, the
Electricity Charge shall be increased proportionately to reflect any excess or
increase in such use. On or after the First Additional Premises Commencement
Date, Landlord may engage a reputable independent electrical consultant to make
a survey of the electric consumption at the First Additional Premises to
determine if Tenant's electric consumption exceeds the criteria set forth above.
If any such survey discloses that such use exceeds the criteria set forth above,
the Electricity Charge shall be increased proportionately by the amount of such
excess, effective as of the First Additional Premises Commencement Date (or if
the increase in such cost is a result of an increase in electrical consumption
which began after the First Additional Premises Commencement Date, then
effective as of the date of such increase in electrical consumption). Upon
delivery of such statement, (A) Tenant shall pay Landlord the amount of such
increase from the First Additional Premises Commencement Date (or from the date
of any increase in electrical consumption, as the case may be) through the date
of such statement, and (B) tenant's regular monthly payments under this Lease
shall be increased to reflect any such increase in the Electricity Charge. If
the Electricity Charge shall have been increased as hereinabove provided, and
thereafter a subsequent survey discloses that the cost to Landlord of the
Tenant's annual electric consumption shall have decreased following the prior
survey, then the Electricity Charge shall be reduced by the amount of such
decrease, effective as of the date of such decrease, provided, however, that in
no event shall such Electricity Charge be reduced below the initial amount of
the Electricity Charge effective on the First Additional Premises Commencement
Date. In such event, Landlord shall reimburse Tenant for the amount of such
decrease, and Tenant's regular monthly payments under this Lease shall be
reduced to reflect any such decrease in the Electricity Charge. The cost of any
such survey shall be shared equally by Landlord and Tenant. The findings of such
consultant shall be conclusive and binding upon Landlord and Tenant.
(c) If either (i) the public utility rate schedule for the supply of
electricity to the Building shall be (A) increased or (B) superseded during the
Lease Term (using the rate in effect on the date hereof as the base rate), or
(ii) electricity or energy consumption shall be measured by any other means,
including, but not limited to, the cost of private sources of energy, then the
Electricity Charge shall be increased in the same percentage effective from the
effective date of such increase in the public utility rate schedule. If after
the Electricity Charge has been increased by reason of any such increase in the
public utility rate schedule such public utility rate schedule shall
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thereafter decrease, then the Electricity Charge shall be decreased in the same
percentage effective from the effective date of such decrease, but in no event
below the initial amount of the Electricity Charge.
(d) Landlord reserves the right to discontinue furnishing electricity to
Tenant in the First Additional Premises at any time upon not less than thirty
(30) days' written notice to Tenant; provided, however, that Landlord shall not
discontinue furnishing electricity to Tenant until Tenant shall have made
arrangements to obtain electricity from the public utility serving the Building
(unless Tenant shall have failed to use reasonable diligence to obtain such
electric service). If Landlord, at Landlord's option, exercises such right of
discontinuance as provided herein, this Lease shall continue in full force and
effect and shall be unaffected thereby, except that, from and after the
effective date of such discontinuance, (i) the Electricity Charge shall no
longer be payable under this Lease, (ii) Tenant shall arrange to obtain
electricity directly from the public utility company supplying electricity to
the Building, (iii) all meters, equipment and other facilities which may be
required for Tenant to obtain electricity directly from such public utility
company shall be installed by Landlord, at Tenant's expense, and the actual cost
thereof shall be payable to Landlord upon demand, as Additional Rent, without
set-off or deduction, if in Landlord's reasonable judgment the same are
necessary, and (iv) any such installation shall be maintained by Tenant, at its
expense, and shall be subject to such conditions as Landlord and/or the public
utility company may require, and Landlord shall not be liable to Tenant therefor
and the same shall not be deemed to be a lessening or diminution of services
within the meaning of any law, rule or regulation now or hereafter enacted,
promulgated or issued.
(e) Landlord reserves the right to determine Tenant's electrical
consumption by a check-meter or other reasonable monitoring device, in which
event Tenant shall pay to Landlord as an additional charge, for electricity
supplied to the First Additional Premises an amount equal to (i) the Average
Rate (as hereinafter defined) multiplied by the number of kilowatt-hours of
electricity used in the First Additional Premises during the period for which
such payment is being made, plus (ii) five percent (5%) of the amount set forth
in clause (i) above. Such payments shall be made within ten (10) days after
receipt of a statement setting forth the number of kilowatt-hours used in the
First Additional Premises during such period, the Average Rate, and the
computation of Tenant's payment. Landlord shall advise Tenant in advance of the
time Landlord will be reading Tenant's meter(s), which reading shall not be more
frequent than once every month, and Tenant or its representative shall have the
right to accompany Landlord's representative for the purpose of verifying
Landlord's reading. For purposes hereof, the term "Average Rate" shall mean the
average cost to Landlord of supplying one (1) kilowatt-hour of electricity to
the floor on which the First Additional Premises are located, and such Rate
shall be determined by dividing (A) the electric xxxx for the floor on which the
First Additional Premises are located
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for the period(s) covered by Tenant's payment by (B) the number of
kilowatt-hours of electricity supplied to such floor during such period.
(f) If any taxes or charges are or shall be imposed upon Landlord or
its agent in connection with the sale or resale of electricity to Tenant,
Tenant covenants and agrees that, where permitted by law, Tenant's pro-rata
share of such taxes or charges shall be passed on to Tenant and paid by
Tenant to Landlord or its agent upon demand, as Additional Rent, without
set-off or deduction. At all times during the Lease Term, Tenant shall
comply with all present and future general rules, regulations, terms and
conditions applicable to service equipment, wiring and requirements in
accordance with the regulations of the public utility company supplying
electricity to the Building.
(g) Promptly after any adjustments in the Electricity Charge become
effective pursuant to this Section 16.1.1, the parties shall execute,
acknowledge and deliver to each other a supplemental agreement in such form
as Landlord shall reasonably require confirming such adjustments, but
failure to do so shall have no effect on any such adjustments.
5. FLOOR PLANS. Effective as of the First Additional Premises Commencement
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Date, "Exhibit B" to the Lease is hereby amended by adding thereto the "Floor
Plan With Respect to the First Additional Premises" attached thereto.
6. ADDITIONAL CONDITION ON SUBLETTING THE FIRST ADDITIONAL
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PREMISES. In addition to all of the conditions and restrictions contained in
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Article 13 of the Lease, in the event of a permitted subletting of the First
Additional Premises, in no event shall there be more than one occupant
(including Tenant) in the First Additional Premises.
7. HOLDING OVER WITH RESPECT TO FIRST ADDITIONAL PREMISES.
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With respect to the First Additional Premises only, any holding over by Tenant
after the expiration of the Lease Term with respect thereto which is accepted by
Landlord shall be treated as creating a month-to-month tenancy at two hundred
percent (200%) of the Annual Fixed Rent with respect to the First Additional
Premises and at the full amount of the Additional Rent provided for herein with
respect to the First Additional Premises immediately prior to such expiration
and shall otherwise be on the terrns and conditions set forth in the Lease, as
amended by this First Amendment, as far as applicable. Landlord waives no rights
against Tenant by reason of accepting any holding over by Tenant, including
without limitation the right to terminate such month-to-month tenancy as
provided by law at any time after the expiration of the Lease Term with respect
thereto and any right to damages in the event that Tenant's holding over causes
Landlord to suffer any loss.
8. BROKERS. Tenant warrants and represents that Tenant has not dealt with
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any broker in connection with the consummation of this First Amendment other
than Xxxxxxxx Real Estate Co., Inc. and Xxxxxx X. Xxxxxx Company, Inc. Landlord
agrees that it shall be
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solely responsible for the payment of any brokerage commission or fee which may
be due to Xxxxxxxx Real Estate Co., Inc. and Xxxxxx X. Xxxxxx Company, Inc.
9. DEFINITIONS All capitalized terms used herein shall have the same
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meaning as set forth in the Lease unless specifically otherwise provided herein.
10. EFFECT OF AMENDMENT. Except as set forth herein, the Lease shall
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remain unchanged and in full force and effect. All references to the "Lease"
shall be deemed to be references to the Lease as amended by this First
Amendment.
Signatures on next page.
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EXECUTED in one or more counterparts by persons or officers hereunto duly
authorized as of the date and year first above written.
WITNESS: LANDLORD:
LEXREAL ASSOCIATES
By: 000 Xxxxxxxxx Xxxxxx Associates Limited
Partnership, General Partner
By: 000 Xxxxxxxxx Xxxxxx General
Associates,
Managing General Partner
By: MSZ 1983 Limited
Partnership, General
Partner
By: /s/ Xxxxxxxx X. Xxxxxxxxx
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Xxxxxxxx X. Xxxxxxxxx
General Partner
TENANT:
YOUNG BROADCASTING, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
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