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EXHIBIT 10(t)
LICENSE AND USE AGREEMENT
THIS LICENSE AND USE AGREEMENT (this "License Agreement") is made and
entered into as of the 30th day of June, 1998, by and between SEA PINES
COMPANY, INC., a South Carolina corporation ("Licensor"), and CC-HILTON HEAD,
INC., a Delaware corporation ("Licensee").
R E C I T A L S :
WHEREAS, Tide Pointe Partners, an Ohio general partnership (the
"Partnership"), is the owner of a certain senior living business and assets
relating to the TidePointe Senior Living Community, located in Hilton Head
Island, South Carolina (the "Project"), including without limitation The Xxxxxx
Center, LLC, a South Carolina limited liability company ("Xxxxxx LLC"), a
health center containing 44 skilled nursing beds and 33 assisted living units
(the "Health Care Center"); Volare Systems Limited Liability Company, an Ohio
limited liability company ("Volare"), which has the right to manage the
Project; certain residential condominium units subject to the terms of The
TidePointe Community Horizontal Property Regime, Master Deed, dated August 16,
1996; and other common elements as described in the master deed and certain
land improved with roads, sanitary and storm sewers and utilities required for
the future construction of garden style villa units in two and three story
structures (collectively, the "Assets"); and
WHEREAS, Licensee has agreed to purchase, upon the terms and conditions
set forth in that certain Agreement of Purchase and Sale dated May 11, 1998, as
amended, by and between Sea Pines/Tide Pointe, Inc., a South Carolina
corporation ("SPTP"), the Partnership, Xxxxxx LLC, Volare and Licensee (the
"Purchase Agreement"), all of the Assets; and
WHEREAS, Licensee desires to have the right to use the name "TidePointe, a
Sea Pines Community" as the name of the Project and to use the name "Sea Pines"
and the Sea Pines "lighthouse" logo in connection with the promotion and
marketing of the Project; and
WHEREAS, Licensee desires that Sea Pines confirm and continue its grant to
residents of the Project of all resort amenities offered by Sea Pines to the
members of the Sea Pines Country Club (the "Country Club") on the same terms as
are granted to members of the Country Club; and
WHEREAS, Licensor and Licensee have made certain other agreements as set
forth herein;
NOW, THEREFORE, for and in consideration of ten dollars ($10.00) paid by
each party to the other, the mutual covenants and agreements herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. GRANT OF LICENSE. Licensor hereby grants to Licensee the
non-exclusive non-transferable right (except as otherwise provided herein) to
use "TidePointe, a Sea Pines Community" as the name of the Project (the
"Project Name") and to use the trade name "Sea Pines" (the "Trade Name") and
the Sea Pines "lighthouse" logo, a copy of which is attached hereto as Exhibit
A, as
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modified by Licensor from time to time, (the "Logo") (collectively, the
"Trademarks") in connection with the promotion and marketing of the Project
throughout the Term (as defined in Section 8). Except as set forth in Section 10
of this License Agreement, Licensor reserves the right, in its sole discretion,
to continue to use the Trademarks in connection with the operation of its
business and to grant licenses to any other persons or entities for the use of
the Trademarks from time to time. License covenants that it shall at all times
during which Licensee is using the Trademarks conduct its business or operations
in a manner which does not materially injure the reputation or the value of the
Trademarks. Licensor agrees that "Hyatt", "Classic Residence by Hyatt" and other
forms of these names are trademarks, and Licensor shall not use such trademarks
in any respect without Licensee's prior written consent, which Licensee may
withhold in its discretion.
2. OWNERSHIP OF THE SEA PINES NAME AND LOGO. As between Licensor and
Licensee, Licensor represents, and Licensee acknowledges and agrees, that
Licensor owns, and shall own, all right, title and interest in and to the words
"Sea Pines" in the Project Name, the Trade Name and the Logo subject to the
rights granted to Licensee hereunder, and Licensor shall protect its right and
interest in the Trademarks and shall indemnify Licensee and its Affiliates
against claims concerning Sea Pines' ownership of such Trademarks and its right
to license such trademarks to Licensee.
3. SCOPE OF LICENSE. Licensee agrees that the Trademarks shall only be
used in connection with the promotion and marketing of the Project and that
such use will be in accordance with all applicable federal, state and local
laws, regulations, and ordinances. Licensee understands and agrees that this
License Agreement and the license granted hereunder are limited solely to the
use of the Trademarks in connection with the promotion and marketing of the
Project, and this License Agreement neither permits nor implies the use of the
Trademarks in connection with the provision of other services or the production
of other goods by Licensee.
4. TRANSFERABILITY OF LICENSE. This License Agreement and the rights and
licenses granted hereunder shall inure to the benefit of and shall be binding
upon the parties hereto and their respective permitted successors and assigns,
including without limitation successor owners of the Project. Except as set
forth specifically below, the rights and licenses granted hereunder may not be
transferred or assignee without the prior written consent of Licensor. Provided
that the assignee is also the assignee (whether by a general assignment or a
collateral assignment) of all of the Assets (other than real property Assets
sold in the ordinary course of business) and subject to the other terms and
conditions of this License Agreement (including the obligation to pay the Fee
(as defined in Section 7)):
(a) the rights granted in Sections 5 and 6 may be assigned by
Licensee, at its election and without Licensor's consent; and
(b) The license granted in Section 1 may be assigned by Licensee to
an Affiliate (as defined herein) or to a lender or other party as security
for loans or other extensions of credit to Licensee without Licensor's
prior written consent.
The license granted in Section 1 may otherwise be assigned by Licensee
only with Licensor's prior written consent, which consent will not be
unreasonably withheld; provided, however, that if
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Licensor elects to withhold such consent, the Fee shall thereafter be reduced
by an amount equal to $50,000 per annum.
No assignment of this License Agreement or any portion hereof shall be
valid or effective unless the assignee shall have assumed all of the
obligations of the Licensee hereunder and agreed to be bound by the terms
hereof, except as specifically set forth in this Section 4.
As used herein, "Affiliate" shall mean (i) Classic Residence Management,
Inc.; (ii) HG, Inc., a Delaware corporation ("HG"); or (iii)(A) any natural
Person that is the immediate ancestor of Xxxxxxxx X. Xxxxxxxx, deceased, or any
descendant of such immediate ancestor (and for this purpose an adopted natural
Person shall be deemed to be the natural issue of his or her adopting parent) or
the spouse of former spouse of any such descendant; (B) the trustee of any trust
principally for the benefit of any natural Person described in (iii)(A)
preceding; (C) any corporation or other entity of which the Controlling Persons,
directly or indirectly, are Classic Residence Management, Inc., HG or any one or
more of the persons or trustees described in (iii)(A) or (iii)(B) preceding; or
(D) any partnership of which the Controlling Persons, directly or indirectly,
are Classic Residence Management, Inc., HG, or any one or more of the Persons
described in (iii)(A), (iii)(B), or (iii)(C) preceding. "Controlling Persons"
shall mean the Persons who have control of another Person. The term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through voting
securities, by contract or otherwise. As used in this Section 4, "Person" shall
mean any individual, partnership, corporation, trust or other entity or
association.
5. GRANT OF RIGHT TO USE AMENITIES. Licensor at all times shall, to the
extent it is legally able to do so, cause the Country Club to grant to its
members the right to retain their membership in the Country Club in the event
such members move to the Project. In addition, Licensor at all times shall
grant to residents of the Project all resort amenities offered by Licensor on
substantially the same terms as are granted to members of the Country Club,
including without limitation, the use of (a) the golf courses on Hilton Head
Island owned by Licensor including the Ocean course, the Sea Xxxxx course, the
Harbour Town course, and any additional golf courses which may be constructed
and/or owned by Sea Pines or any of its affiliated companies on Hilton Head
Island during the term of this License Agreement, (b) the Sea Pines Racquet
Club, and (c) the Sea Pines Beach Club. The scope of the resort amenities
described herein is consistent with the current practice enjoyed by the
residents of the Project, and said grant is supplemental to and in confirmation
of (and not in replacement for) the grants set forth in that certain
Nonexclusive License for Amenities Use and Access Implementation Agreement (the
"Association Agreement") issued in 1996 by Licensor in favor of The TidePointe
Community Association, Inc. (the "Association").
6. OTHER AGREEMENTS. In addition to the licenses and other rights
granted in the Association Agreement, Licensor agrees, upon the request of and
without additional charges to Licensee (other than as set forth in this License
Agreement) and at Licensee's reasonable discretion, to:
(a) Assist Licensee in negotiating a reasonable management agreement
with the Association upon substantially the same terms as the existing
agreement with Volare;
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(b) Assist Licensee in assigning, renegotiating or terminating, as the
case may be, existing service or construction agreements;
(c) Assist Licensee in negotiations or discussions in regards to local
planning and zoning issues;
(d) Assist Licensee in negotiating the potential purchase of adjacent
land by Licensee for the potential expansion of the Project;
(e) Provide the same level of support as it has historically provided to
the Project with regard to local sporting events and general public relations
in the community;
(f) Provide to Licensee each year during the initial five years of the
Term, the following use of Licensor's facilities and amenities, and admission
to events held at such amenities, without charge to Licensee or the pass
holder: (i) 48 starting times for individual rounds of golf on a space
available basis; (ii) 15 grounds badges to the MCI Classic, Heritage of Golf
Tournament; and (iii) 10 season tickets for the Family Circle Cup Tennis
Tournament (or any substitute event); and
(g) For the initial two (2) years of the Term, serve as the broker of
record for sales of residential units at the Project, and in connection
therewith Licensor shall: (i) maintain its residential brokerage license in full
force and effect; (ii) engage as independent contractors those employees of
Licensee designated by Licensee from time to time to serve as sales agents for
residential units at no charge to Licensee or its employees; and (iii) generally
provide marketing and sales support to the Project; provided that Licensee
agrees to indemnify and/or hold Licensor harmless from and against any and all
loss, cost, damage and expense which Licensor may suffer or incur as a result of
serving as such broker of record except to the extent caused by the gross
negligence, willful misconduct or unlawful acts or omissions of Licensor,
provided that the costs and expenses of Licensor's general and administrative
overhead are excluded from the foregoing indemnity, and provided further that
Licensor shall be entitled to conduct such brokerage operation, and implement
such policies and procedures, as are customary in the brokerage industry, upon
such basis and in such manner as it deems appropriate under the circumstances in
its reasonable discretion exercised in good faith.
7. PAYMENTS TO THE LICENSOR
(a) Fee. In consideration of the grant of rights and licenses, and the
covenants and agreements, of Licensor contained herein, and irrespective of
whether Licensee elects to exercise the right or to make use of the licenses
granted in this License Agreement, Licensee shall pay to Licensor annual fees
as follows: (a) commencing on the date hereof and continuing on July 1, 1999
and on each anniversary of such date through and including July 1, 2002, annual
payments of $200,000 each (for a total of $1,000,000), and (b) commencing on
July 1, 2000 and continuing through June 1, 2024, additional annual payments of
$125,000 each, payable in monthly installments of $10,416.67 on the first day
of ech calendar month (for a total of $3,125,000). Such amounts may be
collectively referred to herein as the "Fee".
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(b) Subordination. Notwithstanding any other provision of this License
Agreement, or any other agreement to which Licensee or a Licensee Affiliate (as
defined herein), is a party, any and all payments of a Management Fee (as herein
defined) to Manager (as defined herein) by any Person, shall not be paid to or
accepted by Manager upon the occurrence of a Licensee Event of Default and while
it is continuing, and all Management Fees shall be subordinate to the Fee and
the payment of the Fee to Licensor. Notwithstanding the foregoing, Management
Fees may be paid to and received by Manager at all times other than those during
which a Licensee Event of Default (as defined in Section 8) has occurred and is
continuing. Upon the occurrence of a Licensee Event of Default and while it is
continuing, no payment of any Management Fee shall be made by Licensee or
accepted by Manager until all payments of the Fee including all amounts due upon
an acceleration of the Fee pursuant to this Section 7 or Section 8 of this
License Agreement, have been paid in full. Licensee warrants, represents and
covenants that, prior to the occurrence of a Sale Event, the manager of the
Project and the only person to whom Management Fees will be paid is Classic
Residence Management Limited Partnership ("Manager"), which also manages similar
properties for Affiliates of Licensee. Contemporaneously with the execution of
this License Agreement, Manager shall acknowledge and agree to the provisions
concerning the Management Fees as provided herein in the form set forth in
Exhibit B. Licensee further agrees that it shall not enter into any agreement
pursuant to which it shall pay Management Fees to any Person without obtaining
such person's acknowledgement of such agreement concerning Management Fees
contained herein. The term "Management Fees'' shall mean all amounts paid to
Manager as an "Annual Management Fee" as defined in Section 4.2 of the
Management and Marketing Agreement of even date herewith between the Association
and the Manager and in Section 4.2 of a Marketing and Management Agreement
between Licensee and Manager concerning the Health Care Center (which shall be
substantially identical to the Management and Marketing Agreement of even date
herewith between the Association and Manager); provided, however, that under no
circumstances shall either Management and Marketing Agreement be amended to
reduce the Annual Management Fee to less than six percent (6%). A "Licensee
Affiliate" shall mean an Affiliate (as defined in Section 4) or any other Person
who controls, is controlled by, or is under common control with Licensee or a
permitted successor or assign. As used in this Section 7, the term "Person"
shall mean any natural person, corporation, limited liability company, limited
partnership, general partnership, limited liability partnership or other entity
other than a natural person who is an employee of Licensee.
(c) Sale Event. Upon any Sale Event (as defined herein), Licensor shall,
upon the request of the Purchaser (as defined herein), negotiate in good faith
to arrive at an arrangement pursuant to which Licensor is provided reasonable
assurance satisfactory to Licensor that the Fees will be paid as provided in
this License Agreement. If such negotiations are unsuccessful, Licensor shall
have the right and option, exercisable only in connection with and payable at
the time of the closing of a Sale Event (if ever), to receive an amount which is
the present value of the balance of the Fee remaining to be paid over the Term.
The discount rate applicable to any Sale Event which closes during the first
three (3) years of the Term is eight percent (8%) per annum, while the discount
rate applicable to a Sale Event which closes during the balance of the Term
shall be twelve percent (12%) per annum. If
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Licensor exercises said right and receives said payment, no further payment
of the Fee shall be due from Licensee or the Purchaser, and this License
Agreement shall continue in effect in accordance with its terms. If
Licensor does not exercise such right, its option to accelerate the
payments shall lapse upon the occurrence of the Sale Event with respect to
such Sale Event, but it shall continue to apply to any subsequent Sale
Event. "Sale Event" shall mean a sale of all or substantially all of the
assets of Licensee, a sale of fifty percent (50%) or more of the voting or
equity securities of Licensee, or a merger, consolidation, or other
reorganization involving Licensee or involving a change in control of
Licensee. A "Sale Event" shall not include any assignment or other transfer
to a Licensee Affiliate or to a lender or other party as security for loans
or other extensions to credit to Licensee. "Purchaser" shall mean a party
or parties involved in a Sale Event other than Licensee.
(d) Licensor's Option. At any time during the Term, upon written notice
from Licensee to Licensor, Licensee shall have the right to accelerate the
payment of the Fee, provided that the amount payable upon such acceleration
shall be an amount which is the present value of the balance of the Fee
remaining to be paid over the Term, discounted at the rate of eight percent
(8%) per annum. If Licensee exercises such right and makes such payment, no
further payment of the Fee shall be due from Licensee, and this License
Agreement shall continue in effect in accordance with its terms.
8. TERM; TERMINATION. The term (the "Term") of this License Agreement,
and the licenses and rights granted to Licensee hereunder, shall commence on
the date of this License Agreement and shall continue until June 30, 2024,
unless earlier terminated as follows:
(a) upon the mutual agreement of both parties;
(b) upon notice by Licensor to Licensee in the event that Licensee
breaches any of its covenants or obligations under this License Agreement
and, provided that such breach is capable of being cured, fails to cure
such breach within thirty (30) days after written notice thereof by
Licensor, or, if such cure cannot reasonably be completed with such thirty
(30) day period, fails to promptly commence and diligently pursue such cure
and actually cure such breach within a reasonable time thereafter;
(c) immediately upon the filing of any petition in bankruptcy by or
against Licensee or CC-Development Group, Inc. (a "CCHH Entity") (if
against a CCHH Entity, Licensee shall have ninety (90) days to dismiss or
otherwise terminate such bankruptcy); the application for or acquiescence
in the appointment of a receiver, liquidator, custodian, trustee or similar
officer for a CCHH Entity; an assignment for the benefit of creditors of a
CCHH Entity, or a CCHH Entity shall be or become insolvent or unable
generally to pay its debts as they become due; or
(d) immediately at any time upon notice by Licensee to Licensor in
the event that Licensor breaches any of its covenants or obligations under
this License Agreement and, provided that such breach is capable of being
cured, fails to cure such breach within thirty (30) days after written
notice thereof by Licensee, or, if such cure cannot reasonably be
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completed within such thirty (30) day period, fails to promptly commence
and diligently pursue such cure and actually cure such breach within a
reasonable time thereafter (a "Licensor Event of Default").
Notwithstanding any provision of this License Agreement to the contrary,
if Licensor notifies Licensee of a breach of Sections 1, 2 or 3 of this License
Agreement pursuant to subsection (b) above and this License Agreement is
terminated as a result of such breach and pursuant to said notice, such
termination shall constitute a termination of this License Agreement as to the
license granted in Section 1 hereof only and the provisions of this License
Agreement, other than Sections 1 and 3, shall remain in full force and effect,
including the obligation to pay the full amount of the Fee pursuant to Section
7 and the rights referred to in Sections 5 and 6, notwithstanding such
termination. Further, notwithstanding any other provision of this License
Agreement to the contrary, upon a termination of this License Agreement by
Licensee pursuant to subsection (d) above, no further payment of the Fee shall
be due after the effective date of termination. The occurrence of an event or
events giving rise to a right on behalf of Licensor to terminate this License
Agreement pursuant to subsections (b) or (c) above shall constitute a "Licensee
Event of Default" and, in addition to the right to terminate this License
Agreement, Licensor shall be entitled to accelerate all current and future
payments of the Fee upon notice to Licensee. Notwithstanding any other
provision of this License Agreement to the contrary, upon a Licensor Event of
Default or a Licensee Event of Default, the non-defaulting party shall have all
rights and remedies granted to it under this License Agreement, at law or in
equity and may exercise such rights in such manner as the non-defaulting party
shall elect, and the non-defaulting party's election to exercise one or more
of the rights or remedies available to it shall not constitute a waiver of any
of its other rights or remedies.
9. EFFECT OF TERMINATION. Upon termination of this License Agreement
or the licenses or rights granted in Section 1 hereof, Licensee, at its sole
expense, shall cease using the Trademarks in connection with the Project and
the marketing and promotion of the Project, and shall cease using and destroy
or return to Licensor any and all property containing or displaying the
Trademarks, including but not limited to all signage of the Project.
10. NONCOMPETITION COVENANT. During the term of this License Agreement,
neither Sea Pines nor any of its affiliates shall own any interest in, manage
or operate a continuing care retirement community in the State of South
Carolina, nor shall any Sea Pines entity grant or license the use of any trade
name or trade xxxx of Sea Pines to any continuing care retirement community in
the State of South Carolina.
11. OTHER AGREEMENTS. Upon the execution of this Agreement, Licensor
agrees to cause SPTP, its wholly-owned subsidiary, to execute and deliver a
cancellation of the mortgage executed by the Partnership in favor of SPTP,
dated August 4, 1994 and recorded in Beaufort County, South Carolina in Book
723 at page 1426 with respect to the real property owned by the Partnership,
and to xxxx "PAID IN FULL" on the face of the promissory note secured by such
mortgage. Neither party shall record this License Agreement in the land records
of Beaufort County, South Carolina without the prior written consent of the
other party.
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12. MISCELLANEOUS.
(a) Severability. Each provision of this License Agreement is
intended to be and shall be deemed a severable unit. If any court of competent
jurisdiction determines that any portion of one or more of the provisions
contained in this License Agreement is invalid, illegal or unenforceable in any
respect, such holding shall not affect the validity or enforceability of any
other provision of this License Agreement, and this License Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained in this License Agreement.
(b) Notices. All notices, consents, approvals and the like required
under any of the provisions of this License Agreement shall be in writing and
shall be deemed to be effective (a) if personally delivered or sent by
overnight courier (such as Federal Express), upon delivery, (b) if sent by
facsimile, upon successful transmission, or (c) is sent by U.S. Mail registered
or certified, return receipt requested, with sufficient postage affixed
thereto, four (4) days after being mailed, addressed as follows:
(i) If to Licensee, to:
c/o Classic Residence by Hyatt
000 Xxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxx Xxxxxxx
Executive Vice President
Facsimile Number: (000) 000-0000
(ii) If to Licensor, to:
Sea Pines Company, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxx Xxxx Xxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile Number: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx
or as may be otherwise specified by any party by notice to the other party.
(c) Amendments and Waivers; Cumulative Remedies. This License
Agreement may not be amended or modified in any manner except by an instrument
in writing signed by each of the parties. The failure of any party to enforce
at any time any of the provisions of this License Agreement shall in no way be
construed to be a waiver of any such provision or the right of any party
thereafter to enforce each and every such provision. No waiver of any breach of
this License Agreement shall be held to be a waiver of any other or subsequent
breach. Furthermore, all remedies are cumulative, including the right of either
party to seek equitable relief in addition to money damages.
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(d) Law Applicable. This License Agreement shall be governed,
construed, and enforced in accordance with the laws of the State of South
Carolina.
(e) No Merger. This License Agreement shall survive the closing of
the Purchase Agreement and shall not merge into any of the documents
executed by Licensor or Licensee or its Affiliates at closing. This License
Agreement, and the Subordination Agreement executed by the Manager,
constitute the sole and entire agreement between the parties with respect
to the subject matter hereof. No other writing or documents, course of
prior dealings between the parties, and no usage of the trade shall be
relevant or admissible to supplement, explain, or vary the terms of this
License Agreement. Acceptance of, or acquiescence in, a course of
performance rendered under this or any prior agreement shall not be
relevant or admissible to determine the meaning of this License Agreement
even though the accepting party has knowledge of the nature of the
performance and an opportunity to make objection. No other representations,
understandings, or agreements have been made or relied upon in the making
of this License Agreement other than those specifically set forth in this
License Agreement.
(f) Authorization. Each party hereto warrants and represents that the
execution, delivery and performance of this License Agreement have been
fully authorized by their respective boards of directors, and no other
consents or approvals of any other persons or entities are required. The
parties hereto further warrant and represent that, upon its execution and
delivery by the undersigned, this License Agreement shall be binding upon
the parties hereto and enforceable in accordance with its terms. This
License Agreement may be executed in two or more counterparts.
(g) Expenses. In the event either party initiates litigation to
enforce its rights under this License Agreement, the prevailing party shall
be entitled to recover its reasonable costs and expenses, including
attorney's fees, from the non-prevailing party.
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IN WITNESS WHEREOF, the parties have executed this License Agreement as of
the day and year first above written.
CC-HILTON HEAD, INC.
By: /s/ Xxxx Xxxxx Xxxxxxx
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Title: EVP
SEA PINES COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------
Title: President
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