EXHIBIT 10.14
EXCLUSIVE CABLE DEVELOPMENT
AND
PROGRAMMING SERVICES AGREEMENT
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THIS EXCLUSIVE CABLE DEVELOPMENT & PROGRAMMING SERVICES AGREEMENT (the
"Agreement"), is made and entered into as of the 25 day of August, 1999, by and
between SUNCOAST AUTOMATION, INC., a Deleware corporation, its successors and
assigns ("SUNCOAST"), having its principal office at 000 X Xxxxxx Xxx, Xxxxx X,
Xxxxxxx, Xxxxxxx 00000, and SUNTERRA COMMUNICATIONS CORPORATION, a Florida
corporation (the "COMPANY"), having its principal office at 0000 Xxxx Xxxxxx Xx.
Xxxxxxx, Xxxxxxx 00000.
RECITALS
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A. SUNCOAST in the business of providing cable television services.
B. COMPANY, which is a wholly owned subsidiary of Sunterra Corporation
("Sunterra"), is in the business of providing telecommunications services,
including but not limited to cable TV, to certain resorts which are owned and
operated by Sunterra.
C. COMPANY desires to grant SUNCOAST the exclusive right to provide
construction, maintenance, and programming Services (as defined herein) at the
Two (2) resorts listed on the attached Exhibit "A" (hereinafter each resort
shall be referred to as the "Resort" and all Resorts collectively shall be
referred to as the "Project") and SUNCOAST has agreed to such services subject
to the terms of this Agreement.
NOW, THEREFORE, in consideration of Ten and No/100 Dollars ($10.00), the
mutual covenants and promises contained herein, and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties herein covenant and agree as follows:
Agreement
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1. Recitals: The Recitals stated above are true and correct and are
incorporated herein by reference.
2. Installation of Cable System: Upon execution of this Agreement SUNCOAST
agrees to install a "Cable System" (as defined below) at each Resort in the
Project, utilizing existing cabling, dishes, and/or electronics existing at each
Resort, in a timely manner subject to the following:
2.1 For purposes of this Agreement, the term "Cable System" shall be
defined as Nineteen (19) basic cable TV channels with a distribution system
capable of One gigahertz Two way interaction. Cable System or Equipment does not
include head-end computer server or proprietary software to make the system
interact. The term "Equipment" shall be defined as satellite dishes, head-end
equipment, distribution equipment, and any other equipment utilized by SUNCOAST
to distribute programming to each Resort.
2.2 The COMPANY agrees as follows:
(a) COMPANY shall be required to provide SUNCOAST with reasonable
space, power, air-conditioning, and either a WAN connection, if available, or a
dial up B1 phone line at each Resort for the installation of the Equipment,
including indoor space of approximately 10 feet by 10 feet for the electronic
equipment and outdoor space of approximately 30 feet by 30 feet for the
satellite dish(s).
(b) COMPANY shall provide SUNCOAST with such information,
including maps, working drawings and other records, as are reasonably necessary
to assist in the installation of the Cable System.
(c) During the installation of the Cable System, the COMPANY
shall provide SUNCOAST employees and agents handling the installation with
reasonable lodging facilities at no charge at a mutually agreeable time.
(d) COMPANY shall provide to SUNCOAST, its successors and
assigns, a right of ingress, egress and right of-way, across, through, in, on,
and across exterior boundaries or any part of each Resort in the Project as
required by SUNCOAST for the installation and maintenance of the Cable System
and the Equipment. These rights shall last for the term of this Agreement and
shall survive termination of this Agreement for a period not to exceed Ninety
(90) days, to enable SUNCOAST to remove its Equipment, as applicable.
(e) SUNCOAST and COMPANY will cooperate in obtaining all
governmental licenses and/or permits for the installation of the Cable System
and buildings or towers for the Equipment.
2.3 SUNCOAST agrees as follows:
(a) SUNCOAST will be responsible, at SUNCOAST's expense, for
purchasing and installing the necessary Equipment in order to complete the Cable
System at each Resort in the Project.
(b) Following installation, SUNCOAST will provide COMPANY with an
"as built" print of the Cable System for each Resort and a list of the Equipment
installed.
2.4 Installation of the Cable System at each Resort will begin
following written notice to commence from the COMPANY and SUNCOAST will use its
best effort to complete each Project within One Hundred Twenty (120) days
thereafter.
2.5 During the entire term of this Agreement, including any renewals,
the COMPANY agrees that any modifications to the Cable System including the
expansion of programming Services, shall gbe performed or supervised by SUNCOAST
in order to insure quality and consistency of the Cable System.
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3. Ownership of Equipment: During the Initial Term of this Agreement,
COMPANY and SUNCOAST agree that the Equipment is and shall remain the personal
property of SUNCOAST and that none of the Equipment is or will become a fixture.
At the expiration of the Initial Term (as defined herein) of this Agreement,
this Agreement shall act as the transfer of SUNCOAST's right, title and interest
in the Equipment to the COMPANY.
4. Maintenance of Cable System: During the term of this Agreement,
including any renewals, the parties agree as follows:
4.1 During the first Twelve (12) months immediately following the
Programming Commencement Date, SUNCOAST agrees to preform all maintenance on the
Cable System and Equipment at SUNCOAST's sole expense. Thereafter, SUNCOAST
shall be compensated by the COMPANY at the rate of $47.00 per hour per person,
including travel time, plus reasonable travel expenses and lodging for such
Cable System maintenance. To the extent possible, SUNCOAST will make every
effort to utilized local technicians to perform these tasks in order to minimize
travel and lodging costs.
4.2 SUNCOAST will provide and pay for all replacement parts unless
such parts are necessitated by reason of the gross negligence of the COMPANY,
its employees, servants, agents, guests, or invitees, in which case, the COMPANY
shall be responsible for such replacement parts.
5. Programming Services and Fees: Upon completion of the Cable System at
each Resort, the COMPANY shall and does hereby grant to SUNCOAST the exclusive
right, privilege, and license to provide Services (as defined below) to each
Resort in the Project and the individual units therein during the term of this
Agreement, including any extensions, upon the following terms:
5.1 Services. Upon substantial completion of the Cable System at each
Resort (hereinafter referred to as the "Programming Commencement Date"),
SUNCOAST will provide to each Resort, pursuant to FCC rules in effect or
hereinafter modified, governing the resale of satellite and off-air television
transmissions, except as indicated otherwise, the following:
(a) Nineteen (19) basic cable TV channels ("Cable Services") to
be determined by COMPANY and SUNCOAST. COMPANY may change the Cable Services
upon Thirty (30) days prior written notice. There will be no charge for the
first such change; however, future changes for the same Cable Services will
require a Fifty ($50.00) Dollar fee per change. SUNCOAST reserves the right, at
its discretion, to provide ad insertions on the Cable Services, and to delete,
add or substitute portions of the Services as defined below, but agrees to use
its best efforts to maintain continuity of this programming or the equivalent
thereof.
(b) Tiered programming packages ("Tiered Packages") which will
consist of a group of channels in each separate package and will be provided to
COMPANY Resort guests on an individual basis at the guest's discretion and
billed on a weekly basis using the COMPANY's billing system.
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(c) The Cable System shall include Two (2) additional channels
which will be reserved for use by SUNCOAST during the entire term of this
Agreement.
(d) As used in this Agreement, the term "Services" shall be
defined to include Cable Services and Tiered Packages.
5.2 Programming Fees. Beginning on the Programming Commencement Date,
the COMPANY shall pay SUNCOAST the following fees for Services at each Resort
(the "Programming Fees"):
(a) From the Programming Commencement Date at each Resort and
continuing through the Initial Term as defined herein (the "Initial Programming
Term"), the COMPANY shall pay SUNCOAST the following Programming Fees for the
Services:
(i) For Cable Services, the sum of $12.00 per Unit (as
defined herein) per month until such time as converter boxes have been installed
at each Resort at which time COMPANY shall pay SUNCOAST the sum of $20.37 per
Unit per month; and
(ii) For Tiered Packages, the COMPANY shall pay SUNCOAST
Sixty-Five (65%) percent of the gross billing price for each separate Tiered
Package which is ordered by a Resort Guest. The pricing and content of each
Tiered Packages will determined by SUNCOAST.
(b) Following the end of the Initial Programming Term and
continuing throughout the remaining term of this Agreement, the COMPANY shall
pay SUNCOAST the same Programming Fees as indicated in 5(a) above except for
Cable Services which shall be reduced to $9.95 per Unit per month, plus any
increases per Paragraph 5.2(c) below.
(c) In addition to the Programming Fees price change as stated
above, the Programming Fees for Cable Services may be increased at any time
during the entire term of this Agreement in the event Cable Service programming
costs provided to SUNCOAST by suppliers are increased. Such Programming Fees
increase(s) will be limited to the increase charged SUNCOAST by its programming
supplier. The COMPANY shall, within Thirty (30) days from notice by SUNCOAST of
a Programming Fees increase, have the option of requesting cancellation or
replacement of the specific service for which the rate increase applies by
submitting written notification to SUNCOAST. Failure of COMPANY notifying
SUNCOAST within the allotted time shall act as COMPANY's acceptance of the
Programming Fees increase.
5.3 Cable Service Units. The term "Units" shall be defined as the
total number of rooms which are wired for Cable Service distribution in each
Resort and shall be indicated on the attached Exhibit "A". From the Programming
Commencement Date, and continuing throoughout the entire term of this Agreement,
the COMPANY shall submit to SUNCOAST all change(s) in the number of Units at
least Thirty (30) days prior to the activation of such additional Unit(s).
SUNCOAST will accept facsimile with signature for such reporting purposes.
Thereafter, the Programming Service Fees for Cable Services will be modified by
the increased number of Units as of the activation date. COMPANY shall make
available to SUNCOAST, at COMPANY's office during regular business hours, once
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each calendar year, on Five (5) days advance notice, its books and records
regarding the number of Units for SUNCOAST's inspection and/or audit. COMPANY
and SUNCOAST agree that under reporting of Units applicable to Services supplied
herein shall constitute a material breach of this Agreement. Should any audit
determine that such under Unit reporting has occurred, SUNCOAST, at its option,
may cancel this Agreement and accelerate all monthly payments remaining due
hereunder. COMPANY further agrees to indemnify SUNCOAST for auditing fees and
expenses, and penalties or damages assessed SUNCOAST by SUNCOAST's programming
suppliers as a result of such under Unit reporting.
5.4 Billing & Payment for Programming Services. Each month during the
term of Programming Services, SUNCOAST shall xxxx the COMPANY for each Resort
for Cable Services in advance for each month and for Tiered Services and Pay Per
View in arrears for the immediately preceding month. Payment for all Services
shall be due by the Tenth (10th) day of the month for which the billing applies,
time being of the essence, and interest at the rate of 1.5% percent per month
(18% per annum) will be added for late receipt of any payment. A service charge
of Twenty-five ($25.00) Dollars will be assessed for any returned check, and a
cashier's check will be required as future payment until credit has been
re-established as determined by SUNCOAST. COMPANY shall pay SUNCOAST a late
payment charge of Two (2%) percent for each and every payment(s) which is
outstanding for a period of more than Twenty-five (25) days. Should COMPANY fail
to make payment within Forty-five (45) days from the required billing due date,
or fail to comply with applicable Federal, State, or Local Law governing the
purchase of the Services, SUNCOAST may at its discretion terminate such
Services. Upon such default by COMPANY, SUNCOAST shall be entitled to accelerate
all monthly payments remaining due under this Agreement which will then be
immediately due and payable.
5.5 Programming Services Term.
(a) Initial Programming Services Term. The initial Programming
Services Term shall begin on the Programming Commencement Date for each Resort
and shall continue thereafter for a period of Seven (7) years from the earlier
of completion of construction of each Resort, Including Expansion Units as
indicated on Exhibit "A" or Five (5) years from the Programming Commencement
Date (the "Initial Term").
(b) Renewal of Program Servicing Term. COMPANY shall have the
option, but not the obligation, to renew the Programming Services Term for each
Resort for an additional Five (5) year term ("Renewal Term") by providing
written notice to SUNCOAST at least Ninety (90) days prior to the expiration of
the Initial Term of each Resort that it will exercise such option to renew. The
terms of this Agreement shall govern during any Renewal Term except as agreed
upon in writing by the parties.
(c) Notwithstanding the above, SUNCOAST may cancel this Agreement
due to the occurrence of adverse circumstances that are beyond SUNCOAST's
reasonable control, including, but not limited to, microwave interference or the
institution of any governmental law, rule or regulation making it unreasonable
for SUNCOAST to maintain the Services as agreed to.
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5.6 Compliance. Except as stated otherwise herein, SUNCOAST will be
responsible for providing equipment and maintenance necessary for adequate
reception for distribution of signal throughout the Agreement term. COMPANY
shall not allow interference with the Equipment or the master antenna television
system ("MATV") or allow the connection of any device to the Equipment or MATV
which causes interference. COMPANY shall cooperate in preventing theft of the
Services by third parties including residents.
5.7 Program Advertising. COMPANY and SUNCOAST will jointly publish
information about the Services available to Resort guests with the costs of such
advertising divided as mutually agreeable between the parties.
6. Insurance: During the Initial Term of this Agreement, SUNCOAST shall, at
its sole cost and expense, carry insurance covering all of the Equipment
involved in this Agreement, or any amendments thereto, against any loss by
theft, fire or other hazard or perils ordinarily included under a standard
extended coverage endorsement. Further, during the Initial Term, SUNCOAST shall,
at its sole cost and expense, carry insurance against liability for death or
personal injury in an amount not less than a combined single limit of $500,000
for each occurrence and a $500,000 aggregate regarding the Cable System and
Equipment. Said insurance shall name COMPANY as an additional insured and
COMPANY shall be provided with a copy of said insurance upon request. SUNCOAST,
in no event, shall be liable for any uninsured damages or for the consequences
of acts and events beyond its reasonable control concerning the Cable System or
Equipment. These acts and events include, but are not limited to: a) acts of God
or acts of the government of the United States: b) fires, floods, explosions,
wind, storms, hurricanes, lightning or other catastrophes; c) civil riot or
disturbances; d) acts of persons other than SUNCOAST and SUNCOAST's agents.
7. Representations and Warranties of COMPANY: As a material inducement to
SUNCOAST to enter into this Agreement, without which inducement COMPANY
acknowledges SUNCOAST would not enter into this Agreement, COMPANY represents
and warrants to SUNCOAST as follows:
7.1 That the COMPANY has full power and authority to make, enter into,
deliver and perform pursuant to this Agreement and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Agreement.
7.2 That the COMPANY is a corporation, duly established, validly
existing in good standing under the laws of the State of Florida.
7.3 That this Agreement and all exhibits are valid, binding and
enforceable against the COMPANY in accordance with their respective terms and
provisions.
7.4 Other than this Agreement, COMPANY has not entered into, and shall
not enter into, any other oral or written lease, license, contract or agreement
regarding cable television service within the Project during the term of this
Agreement.
7.5 There is no outstanding license, contract, agreement, document,
lease, notice, or any other instrument which in any way regulates or restricts
the exclusive full right, power and authority of COMPANY to enter into and
perform this Agreement. There is no restriction, covenant, zoning or other
matter which would prohibit the installation, maintenance and operation of the
contemplated cable television system within the Project.
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8. Indemnification: COMPANY and SUNCOAST each hereby agrees to indemnify
and hold harmless the other party from any and all expenses, losses, damages or
costs or every kind, character and nature whatsoever (including, without
limitation, attorneys fees and expenses) which such party may suffer or incur
based upon or arising out of the inaccuracy or breach of any of the
representations and/or warranties contained herein or the acts or omissions of
the indemnifying parties.
9. Notice: All notices, requests, demands and other communications required
or permitted to be given hereunder shall he in writing and shall be deemed to
have been duly given if delivered personally or sent by a recognized overnight
carrier or mailed by certified mail, return receipt requested, with postage
prepaid, at the address set forth below:
SUNCOAST: 000 X Xxxxxx Xxx Xxxxx X
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxx
COMPANY: 0000 Xxxx Xxxxxx Xx.
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxxxx
10. Right to Cure: COMPANY shall not be in default of any non-monetary
provision of this Agreement and SUNCOAST shall not pursue any remedy provided
hereunder or permitted by applicable law unless SUNCOAST gives written notice to
COMPANY specifically identifying the provision or provisions of this Agreement
which COMPANY has failed to perform and COMPANY fails to cure such failure
within Five (5) days of receipt of such notice, or, if such failure to perform
is of the nature that it cannot be cured within Five (5) days, the COMPANY fails
to commence cure of such failure to perform within Five (5) days of receipt of
such notice and proceed diligently and continuously to complete curing such
failure to perform.
11. COMPANY Termination: SUNCOAST agrees that the COMPANY shall have the
right to terminate this Agreement upon SUNCOAST filing for bankruptcy or
reorganization under the bankruptcy code without such proceedings being vacated,
stayed, or dismissed within sixty (60) days from the date of the institution
thereof.
12. Confidentiality in Favor of SUNCOAST: COMPANY acknowledges that the
concept including provisions, terms, and conditions as contained in this
Agreement (the "Concept") is proprietary to SUNCOAST and has been developed by
SUNCOAST at great expense, and over lengthy periods of time, is secret and
confidential and is unique and constitutes the exclusive property of SUNCOAST
and that any use of the Concept by COMPANY other than for the benefit of
SUNCOAST would be wrongful and would cause irreparable injury to SUNCOAST.
Accordingly, except as required by law, COMPANY agrees that it shall not, either
during or subsequent to the termination of this Agreement, use, reveal, report,
publish, copy, transcribe, transfer or otherwise disclose to any person,
corporation, or other entity, the Concept without the prior written consent of
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SUNCOAST, with the exception of responsible officers and employees of COMPANY
and with the exception of information which legally and legitimately is or
becomes known in the public domain through sources other than through COMPANY.
COMPANY hereby acknowledges and agrees that in the event of any violation or
threatened violation of this paragraph of the Agreement, SUNCOAST shall be
authorized and entitled to obtain from any court of competent jurisdiction,
preliminary and permanent injunctive relief as well as an equitable accounting
of all profits and benefits arising out of such violation plus reasonable
attorneys' fees and costs, which right and remedies shall be cumulative and in
addition to any other rights or remedies to which it may be entitled.
13. Confidentiality in Favor of COMPANY: During the term of this Agreement,
SUNCOAST may be entrusted with and may assimilate written and non-written
information of a confidential nature relating to the business of the COMPANY,
excluding information or materials publicly disclosed and a matter of common
knowledge in the field of work of the COMPANY, hereinafter referred to as
"Confidential Information". Accordingly, except as required by law, SUNCOAST
agrees that it shall not, either during or subsequent to the termination of this
Agreement, disclose to any person, corporation, or other entity, the
Confidential Information without the prior written consent of COMPANY, with the
exception of responsible officers and employees of SUNCOAST and with the
exception of information which legally and legitimately is or becomes known in
the public domain through sources other than through SUNCOAST. SUNCOAST hereby
acknowledges and agrees that in the event of any violation or threatened
violation of this paragraph of the Agreement, COMPANY shall be authorized and
entitled to obtain from any court of competent jurisdiction, preliminary and
permanent injunctive relief as well as an equitable accounting of all profits
and benefits arising out of such violation plus reasonable attorneys' fees and
costs, which right and remedies shall be cumulative and in addition to any other
rights or remedies to which it may be entitled.
14. Miscellaneous:
I. Attorney Fees and Costs. The parties agree that if any action at
law or equity is required to enforce or interpret the provisions of this
Agreement, the prevailing party shall be entitled to recover all costs of
collection, including without limitation, reasonable attorneys' fees and costs
incurred in any litigation, mediation, arbitration, or administrative or
bankruptcy proceedings, and any appeals therefrom, in addition to any other
relief to which they may be entitled.
B. Section and Other Headings. Section, paragraph and other headings
contained in this Agreement are for reference purposes only and shall not effect
in any way the meaning or interpretation of this Agreement.
C. Gender. All personal pronouns used in this Agreement shall include
the other genders whether used in the masculine or feminine or neuter gender and
the singular shall include the plural wherever and as often as may be
appropriate.
D. Severability. In case any one or more provisions contained in this
Agreement shall, for any reason, be held invalid, illegal or unenforceable in
any respect, such invalidity, illegality, or unenforceability shall not effect
any other provision herein and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had not been contained herein.
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E. Choice of Law. It is the intention of the parties that the law of
the State of Florida shall govern the validity of this Agreement, the
construction of its terms and the interpretation of the rights and duties of the
parties.
F. Entire Agreement. This Agreement, including attachments,
constitutes the entire agreement between the parties and there are no
agreements, understandings, restrictions, warranties, or representations,
expressed or implied, oral or written between the parties other than those
herein contained.
G. Time of Essence. It is understood and agreed by the parties hereto
that time shall be of the essence in this Agreement and such time shall be an
essential part of this Agreement.
H. Amendment. No amendment, waiver or modification of this Agreement,
or any provisions of this Agreement, shall be valid unless in writing and duly
executed by all parties.
I. Counterpart execution. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
J. Parties and Interest. All terms and provisions of this Agreement
shall be binding upon and inure to the benefit of, and be enforceable by
SUNCOAST, COMPANY, their heirs, legal representatives, successors, and assigns.
K. Survival. The executory provisions of this Agreement and all
representations and warranties shall survive the consummation of the
transactions contemplated by this Agreement.
L. No Partnership. Notwithstanding anything to the contrary contained
herein, neither this Agreement nor the conduct of the parties hereto shall be
deemed or construed to create a partnership or joint venture or other such
business relationship between the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
date and year indicated immediately below their signatures.
"SUNCOAST" "COMPANY"
Suncoast Automation, Inc. Sunterra Communications
Corporation
By:
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Xxxx Xxxxxx, President (Xxxxx Xxxxxxxx VP)
Date: Date:
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AGREEMENT GUARANTY
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Sunterra Corporation, as the sole shareholder and parent company of
COMPANY, does hereby jointly and severally give to SUNCOAST its continuing and
unconditional guaranty of all the representations, covenants, warranties, and
obligations of COMPANY as contained in the above EXCLUSIVE CABLE DEVELOPMENT &
PROGRAMMING SERVICES AGREEMENT, to the same extent as if Sunterra were the
COMPANY, and further waives any right to require suit against the COMPANY or any
other party before SUNCOAST enforces this guaranty.
Sunterra Corporation
By:
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(Xxxxx Xxxxxxxx VP)
Date:
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EXHIBIT "A"
List of Resorts
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1st Resort Greensprings Plantation
Address 0000 Xxxxxxxxxxx Xx.
Xxxxxxxxxxxx, Xxxxxxxx 00000
Units: 130
Expansion Xxxxx 000
0xx Xxxxxx Xxxxxxxx Xxxxxxxxxx
Xxxxxxx 0000 Xxxxxxxxx Xx.
Xxxxxxxxxxxx, Xxxxxxxx 00000
Units: 431
Expansion Units 0
