Exh. 10.5-Xxxx Promissory Note for $200,000 dated February 16, 2006
THIS CONVERTIBLE PROMISSORY NOTE IS BEING ISSUED TO XXXXXXX X. XXXX AS A CARVE
OUT FROM THE CONVERTIBLE PROMISSORY NOTE ISSUED TO CAPITALSMART, LLC
("CAPITALSMART NOTE") DATED FEBRUARY 15, 2006 FOR $1,000,000. PER AN AGREEMENT
BETWEEN THE PRINCIPALS OF CAPITALSMART, LLC, THE CAPITALSMART NOTE WAS CANCELLED
AND INDIVIDUAL CONVERTIBLE PROMISSORY NOTES WERE ISSUED IN LIEU THEREOF, EACH IN
THE NAME OF A PRINCIPAL (OR ENTITY CONTROLLED BY A PRINCIPAL) OF CAPITALSMART.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT
AND UNDER APPLICABLE STATE SECURITIES LAWS OR MEDICAL MEDIA TELEVISION, INC.
SHALL HAVE RECEIVED AN OPINION OF COUNSEL THAT REGISTRATION OF SUCH SECURITIES
UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES
LAWS IS NOT REQUIRED.
MEDICAL MEDIA TELEVISION, INC.
CONVERTIBLE PROMISSORY NOTE
U.S. $200,000 February 16, 2006
No.: PN-0216-GBR
FOR VALUE RECEIVED, the undersigned, Medical Media Television, Inc.,
a Florida corporation (the "Company"), hereby promises to pay to the order of
Xxxxxxx X. Xxxx or any future permitted holder of this promissory note (the
"Investor", "Payee", or "Holder"), at the principal office of the Payee set
forth herein, or at such other place as the Payee may designate in writing to
the Company, the principal sum of Two Hundred Thousand Dollars (U.S. $200,000),
or such other amount as may be outstanding hereunder, together with any accrued
but unpaid interest, in such coin or currency of the United States of America as
at the time shall be legal tender for the payment of public and private debts
and in immediately available funds, as provided in this Convertible Promissory
Note (the "Note"). This Note is the Note referred to in the Note Purchase
Agreement dated as of February 15, 2006, between the Company and the purchaser
named therein (the "Purchase Agreement"). Capitalized terms used and not
otherwise defined herein shall have the meanings set forth for such terms in the
Purchase Agreement.
1. Principal and Interest Payments.
(a) The Payee shall loan the Company, in installments, an
aggregate of $200,000.
(b) The Company shall repay in full the entire principal
balance then outstanding under this Note plus any accrued but unpaid interest:
(i) at any time on or before February 15, 2009, or (ii) as this Note may be
extended pursuant to the terms hereof, or (iii) upon the acceleration of the
obligations as contemplated by this Note, all being described as the "Maturity
Date."
(c) The Note shall bear interest at a rate of twenty percent
(20%) per annum. Interest shall accrue but will not become due and payable until
the Maturity Date.
(d) This Note shall not be convertible until the Maturity
Date. With the consent of both the Company and the Investor, the Note may be
extended for an additional 12-month term, with the terms of the interest
payments remaining the same as outlined in 1(c) above. The Note shall not be
convertible such that the Investor's overall Common Stock ownership position in
the Company exceeds 4.99%.
(e) The Company has the option to pay the principal amount of
this Note plus any accrued but unpaid interest in a cash payment at any time
prior to the Maturity Date.
2. Conversion Option; Issuance of Certificates.
(a) This Note shall not be convertible until the Maturity
Date. If the Company has not paid the Note prior to the Maturity Date, then at
the Maturity Date, the outstanding principal amount of this Note, plus any
accrued but unpaid interest shall be due and payable in cash; provided, however,
the Payee shall have the sole option to convert on the Maturity Date the
outstanding principal amount of this Note plus any accrued but unpaid interest
into such number of shares of common stock of the Company, par value $.0005 per
share (the "Common Stock"), equal to the principal amount of this Note plus any
accrued but unpaid interest being converted divided by the Conversion Price. For
purposes of this Note, "Conversion Price" shall mean the amount equal to a
twenty percent (20%) discount to the then-current market price based on the
average closing price for the twenty (20) days immediately preceding the
conversion, but in no event shall the Conversion Price be less than $0.166 per
share. Upon conversion of this Note into shares of Common Stock, the outstanding
principal amount of this Note, together with any accrued but unpaid interest,
shall be deemed to be the consideration for the Payee's interest in such shares
of Common Stock.
(b) In the event that the Payee elects to convert this Note
into shares of Common Stock in accordance with Section 2(a) herein, the Company
shall, not later than five (5) trading days after the conversion of this Note,
issue and deliver to the Payee by express courier a certificate or certificates
representing the number of shares of Common Stock being acquired upon the
conversion of this Note.
3. Ownership Cap and Certain Exercise Restrictions.
(a) Notwithstanding anything to the contrary set forth in this
Note, at no time may a Holder of this Note convert this Note if the number of
shares of Common Stock to be issued pursuant to such conversion would exceed,
when aggregated with all other shares of Common Stock owned by such Holder at
such time, the number of shares of Common Stock which would result in such
Holder owning more than 4.999% of all of the Common Stock outstanding at such
time; provided, however, that upon a holder of this Note providing the Company
with sixty-one (61) days notice (pursuant to Section 13 hereof) (the "Waiver
Notice") that such Holder would like to waive this Section 3(a) with regard to
any or all shares of Common Stock issuable upon exercise of this Note, this
Section 3(a) will be of no force or effect with regard to all or a portion of
the Note referenced in the Waiver Notice; provided, further, that this provision
shall be of no further force or effect during the sixty-one (61) days
immediately preceding the expiration of the term of this Note.
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(b) The Holder may not convert this Note hereunder to the
extent such conversion would result in the Holder beneficially owning (as
determined in accordance with Section 13(d) of the Exchange Act and the rules
thereunder) in excess of 9.999% of the then issued and outstanding shares of
Common Stock, including shares issuable upon conversion of the Note held by the
Holder after application of this Section; provided, however, that upon a holder
of this Note providing the Company with a Waiver Notice that such holder would
like to waive this Section 3(b) with regard to any or all shares of Common Stock
issuable upon conversion of this Note, this Section 3(b) shall be of no force or
effect with regard to those shares of Common Stock referenced in the Waiver
Notice; provided, further, that this provision shall be of no further force or
effect during the sixty-one (61) days immediately preceding the expiration of
the term of this Note.
4. Responsibilities of Company:
(a) Issue Taxes. The Company shall pay any and all issue and
other taxes, excluding federal, state or local income taxes, that may be payable
in respect of any issue or delivery of shares of Common Stock on conversion of
this Note pursuant thereto; provided, however, that the Company shall not be
obligated to pay any transfer taxes resulting from any transfer requested by any
holder in connection with any such conversion.
(b) Fractional Shares. No fractional shares of Common Stock
shall be issued upon conversion of this Note. In lieu of any fractional shares
to which the Payee would otherwise be entitled, the Company shall pay cash equal
to the product of such fraction multiplied by the average of the closing bid
prices of the Common Stock for the five (5) consecutive trading days immediately
preceding the date of conversion of this Note.
(c) Reservation of Common Stock. The Company shall at all
times when this Note shall be outstanding, reserve and keep available out of its
authorized but unissued shares of Common Stock, such number of shares of Common
Stock as shall from time to time be sufficient to effect the conversion of this
Note.
(d) Registration Rights. The Investor is aware that the
Company filed a Registration Statement on Form SB-2 which was approved by the
Securities & Exchange Commission on March 1, 2006 and that a total of 2,500,000
shares of Common Stock were reserved and registered for the conversion of the
original CapitalSmart Convertible Promissory Note for $1,000,000. The Investor
acknowledges and understands that 500,000 shares of Common Stock previously
registered has been allocated for the future conversion of the principal amount
of this Note, plus all accrued but unpaid interest (the "Allocated Shares"). Any
shares of Common Stock issued to the Investor upon the conversion of the
principal amount of this Note plus all accrued but unpaid interest in excess of
the Allocated Shares shall have standard piggyback registration rights.
5. No Rights as Shareholder. Nothing contained in this Note shall be
construed as conferring upon the Payee, prior to the conversion of this Note,
the right to vote or to receive dividends or to consent or to receive notice as
a shareholder in respect of any meeting of shareholders for the election of
directors of the Company or of any other matter, or any other rights as a
shareholder of the Company.
6. Payment on Non-Business Days. Whenever any payment to be made
shall be due on a Saturday, Sunday or a public holiday under the laws of the
State of Florida, such payment may be due on the next succeeding business day.
7. Representations and Warranties of the Company. The Company
represents and warrants to the Payee as follows:
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(a) The Company has been duly incorporated, validly exists,
and is in good standing under the laws of the State of Florida, with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as currently conducted.
(b) This Note has been duly authorized, validly executed and
delivered on behalf of the Company and is a valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, subject to
limitations on enforcement by general principles of equity and by bankruptcy or
other laws affecting the enforcement of creditors' rights generally, and the
Company has full power and authority to execute and deliver this Note and to
perform its obligations hereunder.
(c) The execution, delivery and performance of this Note will
not (i) conflict with or result in a breach of or a default under any of the
terms or provisions of, (A) the Company's certificate of incorporation or
by-laws, or (B) any material provision of any indenture, mortgage, deed of trust
or other material agreement or instrument to which the Company is a party or by
which it or any of its material properties or assets is bound, (ii) result in a
violation of any material provision of any law, statute, rule, regulation, or
any existing applicable decree, judgment or order by any court, Federal or state
regulatory body, administrative agency, or other governmental body having
jurisdiction over the Company, or any of its material properties or assets or
(iii) result in the creation or imposition of any material lien, charge or
encumbrance upon any material property or assets of the Company or any of its
subsidiaries pursuant to the terms of any agreement or instrument to which any
of them is a party or by which any of them may be bound or to which any of their
property or any of them is subject.
(d) No consent, approval or authorization of or designation,
declaration or filing with any governmental authority on the part of the Company
is required in connection with the valid execution and delivery of this Note.
8. Events of Default. The occurrence of any of the following events
shall be an "Event of Default" under this Note:
(a) the Company shall fail to make the payment of any amount
of any principal outstanding on the date such payment shall become due and
payable hereunder; or
(b) the Company shall fail to make interest payments on the
date such payments shall become due and payable hereunder; or
(c) any representation, warranty or certification made by the
Company herein, or in any certificate or financial statement shall prove to have
been false or incorrect or breached in a material respect on the date as of
which made; or
(d) the holder of any indebtedness of the Company or any of
its subsidiaries shall accelerate any payment of any amount or amounts of
principal or interest on any indebtedness (the "Indebtedness") (other than the
Indebtedness hereunder) prior to its stated maturity or payment date the
aggregate principal amount of which Indebtedness of all such persons is in
excess of $100,000, whether such Indebtedness now exists or shall hereinafter be
created, and such accelerated payment entitles the holder thereof to immediate
payment of such Indebtedness which is due and owing and such indebtedness has
not been discharged in full or such acceleration has not been stayed, rescinded
or annulled within ten (10) business days of such acceleration; or
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(e) a judgment or order for the payment of money shall be
rendered against the Company or any of its subsidiaries in excess of $100,000 in
the aggregate (net of any applicable insurance coverage) for all such judgments
or orders against all such persons (treating any deductibles, self insurance or
retention as not so covered) that shall not be discharged, and all such
judgments and orders remain outstanding, and there shall be any period of sixty
(60) consecutive days following entry of the judgment or order in excess of
$500,000 or the judgment or order which causes the aggregate amount described
above to exceed $500,000 during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; or
(f) the Company shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian, trustee
or liquidator of itself or of all or a substantial part of its property or
assets, (ii) admit in writing its inability to pay its debts as such debts
become due, (iii) make a general assignment for the benefit of its creditors,
(iv) commence a voluntary case under the Bankruptcy Code or under the comparable
laws of any jurisdiction (foreign or domestic), (v) file a petition seeking to
take advantage of any bankruptcy, insolvency, moratorium, reorganization or
other similar law affecting the enforcement of creditors' rights generally, (vi)
acquiesce in writing to any petition filed against it in an involuntary case
under the Bankruptcy Code or under the comparable laws of any jurisdiction
(foreign or domestic), or (vii) take any action under the laws of any
jurisdiction (foreign or domestic) analogous to any of the foregoing; or
(g) a proceeding or case shall be commenced in respect of the
Company or any of its subsidiaries without its application or consent, in any
court of competent jurisdiction, seeking (i) the liquidation, reorganization,
moratorium, dissolution, winding up, or composition or readjustment of its
debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the
like of it or of all or any substantial part of its assets or (iii) similar
relief in respect of it under any law providing for the relief of debtors, and
such proceeding or case described in clause (i), (ii) or (iii) shall continue
undismissed, or unstayed and in effect, for a period of thirty (30) consecutive
days or any order for relief shall be entered in an involuntary case under the
Bankruptcy Code or under the comparable laws of any jurisdiction (foreign or
domestic) against the Company or any of its subsidiaries or action under the
laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing
shall be taken with respect to the Company or any of its subsidiaries and shall
continue undismissed, or unstayed and in effect for a period of thirty (30)
consecutive days; or
(h) failure by the Company to issue the Conversion Shares or
notice from the Company to the Payee, including by way of public announcement,
at any time, of its inability to comply or its intention not to comply with
proper requests for conversion of this Note into shares of Common Stock.
9. Remedies Upon An Event of Default. If an Event of Default shall
have occurred and shall be continuing, the Payee of this Note may at any time at
its option, (a) declare the entire unpaid principal balance of this Note,
together with all accrued but unpaid interest, due and payable, and thereupon,
the same shall be accelerated and so due and payable; provided, however, that
upon the occurrence of an Event of Default described in Sections 8(f) and (g),
without presentment, demand, protest, or notice, all of which are hereby
expressly unconditionally and irrevocably waived by the Company, the outstanding
principal balance and any accrued but unpaid interest shall be automatically due
and payable; or (b) exercise or otherwise enforce any one or more of the Payee's
rights, powers, privileges, remedies and interests under this Note or applicable
law. No course of delay on the part of the Payee shall operate as a waiver
thereof or otherwise prejudice the right of the Payee. No remedy conferred
hereby shall be exclusive of any other remedy referred to herein or now or
hereafter available at law, in equity, by statute or otherwise. Notwithstanding
the foregoing, Payee agrees that its rights and remedies hereunder are limited
to receipt of cash or shares of Common Stock in the amounts described herein.
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10. Replacement. Upon receipt of a duly executed, notarized and
unsecured written statement from the Payee with respect to the loss, theft or
destruction of this Note (or any replacement hereof), and without requiring an
indemnity bond or other security, or, in the case of a mutilation of this Note,
upon surrender and cancellation of such Note, the Company shall issue a new
Note, of like tenor and amount, in lieu of such lost, stolen, destroyed or
mutilated Note.
11. Parties in Interest, Transferability. This Note shall be binding
upon the Company and its successors and assigns and the terms hereof shall inure
to the benefit of the Payee and its successors and permitted assigns. This Note
may be transferred or sold, subject to the provisions of this Note, or pledged,
hypothecated or otherwise granted as security by the Payee.
12. Amendments. This Note may not be modified or amended in any
manner except in writing executed by the Company and the Payee.
13. Assignment. Neither party may assign, sell, or transfer to any
third person the rights of such party hereunder; provided, however, that Payee
may assign his rights hereunder to an entity wholly owned and controlled by
Payee.
14. Notices. Any notice, demand, request, waiver or other
communication required or permitted to be given hereunder shall be in writing
and shall be effective (a) upon hand delivery by telecopy or facsimile at the
address or number designated below (if delivered on a business day during normal
business hours where such notice is to be received), or the first business day
following such delivery (if delivered other than on a business day during normal
business hours where such notice is to be received) or (b) on the second
business day following the date of mailing by express courier service, fully
prepaid, addressed to such address, or upon actual receipt of such mailing,
whichever shall first occur. The Company will give written notice to the Payee
at least thirty (30) days prior to the date on which the Company closes its
books and in no event shall such notice be provided to such holder prior to such
information being made known to the public. The Company will also give written
notice to the Payee at least twenty (20) days prior to the date on which
dissolution, liquidation or winding-up will take place and in no event shall
such notice be provided to the Payee prior to such information being made known
to the public.
Address of the Payee: Xxxxxxx X. Xxxx
00000 Xxxxxxxxx Xx.
Xxxxxxxxxx, Xxxxxxxxxx 00000
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Address of the Company: Medical Media Television, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx X
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, President/CEO
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
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with a copy to: Xxxx Xxxx Xxxxxxx Xxxxxx & Xxxx, PA
Attn: Xxxx X. Xxxxxxxx
000 X. Xxxxxxxx Xx.
Xxxxx, XX 00000
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
15. Governing Law. This Note shall be governed by and construed in
accordance with the internal laws of the State of Florida, without giving effect
to the choice of law provisions. This Note shall not be interpreted or construed
with any presumption against the party causing this Note to be drafted.
16. Headings. Article and section headings in this Note are included
herein for purposes of convenience of reference only and shall not constitute a
part of this Note for any other purpose.
17. Remedies, Characterizations, Other Obligations, Breaches and
Injunctive Relief. The remedies provided in this Note shall be cumulative and in
addition to all other remedies available under this Note, at law or in equity
(including, without limitation, a decree of specific performance and/or other
injunctive relief), no remedy contained herein shall be deemed a waiver of
compliance with the provisions giving rise to such remedy and nothing herein
shall limit a Payee's right to pursue actual damages for any failure by the
Company to comply with the terms of this Note. Amounts set forth or provided for
herein with respect to payments and the like (and the computation thereof) shall
be the amounts to be received by the Payee and shall not, except as expressly
provided herein, be subject to any other obligation of the Company (or the
performance thereof). The Company acknowledges that a breach by it of its
obligations hereunder will cause irreparable and material harm to the Payee and
that the remedy at law for any such breach may be inadequate. Therefore the
Company agrees that, in the event of any such breach or threatened breach, the
Payee shall be entitled, in addition to all other available rights and remedies,
at law or in equity, to seek and obtain such equitable relief, including but not
limited to an injunction restraining any such breach or threatened breach,
without the necessity of showing economic loss and without any bond or other
security being required.
18. Failure or Indulgence Not Waiver. No failure or delay on the
part of the Payee in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power, right or privilege preclude other or further exercise thereof or
of any other right, power or privilege.
19. Enforcement Expenses. The Company agrees to pay all costs and
expenses of enforcement of this Note, including, without limitation, reasonable
attorneys' fees and expenses.
20. Binding Effect. The obligations of the Company and the Payee set
forth herein shall be binding upon the successors and assigns of each such
party, whether or not such successors or assigns are permitted by the terms
hereof.
21. Compliance with Securities Laws. The Payee of this Note
acknowledges that this Note is being acquired solely for the Payee's own account
and not as a nominee for any other party, and for investment, and that the Payee
shall not offer, sell or otherwise dispose of this Note other than in compliance
with the laws of the United States of America and as guided by the rules of the
Securities and Exchange Commission. This Note and any Note issued in
substitution or replacement therefore shall be stamped or imprinted with a
legend in substantially the following form:
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"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAW AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND
UNDER APPLICABLE STATE SECURITIES LAWS OR MEDICAL MEDIA
TELEVISION, INC. SHALL HAVE RECEIVED AN OPINION OF COUNSEL
THAT REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT
AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS
IS NOT REQUIRED."
22. Severability. The provisions of this Note are severable, and if
any provision shall be held invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability shall not in any manner
affect such provision in any other jurisdiction or any other provision of this
Note in any jurisdiction.
23. Consent to Jurisdiction. Each of the Company and the Payee (i)
hereby irrevocably submits to the jurisdiction of the United States District
Court sitting in Central Florida and the courts of the State of Florida located
in Hillsborough County for the purposes of any suit, action or proceeding
arising out of or relating to this Note and (ii) hereby waives, and agrees not
to assert in any such suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of such court, that the suit, action or
proceeding is brought in an inconvenient forum or that the venue of the suit,
action or proceeding is improper. Each of the Company and the Payee consents to
process being served in any such suit, action or proceeding by mailing a copy
thereof to such party at the address set forth in Section 13 hereof and agrees
that such service shall constitute good and sufficient service of process and
notice thereof. Nothing in this Section 23 shall affect or limit any right to
serve process in any other manner permitted by law.
24. Company Waivers. Except as otherwise specifically provided
herein, the Company and all others that may become liable for all or any part of
the obligations evidenced by this Note, hereby waive presentment, demand, notice
of nonpayment, protest and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note, and do hereby
consent to any number of renewals of extensions of the time or payment hereof
and agree that any such renewals or extensions may be made without notice to any
such persons and without affecting their liability herein and do further consent
to the release of any person liable hereon, all without affecting the liability
of the other persons, firms or Company liable for the payment of this Note, AND
DO HEREBY WAIVE TRIAL BY JURY.
(a) No delay or omission on the part of the Payee in
exercising its rights under this Note, or course of conduct relating hereto,
shall operate as a waiver of such rights or any other right of the Payee, nor
shall any waiver by the Payee of any such right or rights on any one occasion be
deemed a waiver of the same right or rights on any future occasion.
(b) THE COMPANY ACKNOWLEDGES THAT THE TRANSACTION OF WHICH
THIS NOTE IS A PART IS A COMMERCIAL TRANSACTION, AND TO THE EXTENT ALLOWED BY
APPLICABLE LAW, HEREBY WAIVES ITS RIGHT TO NOTICE AND HEARING WITH RESPECT TO
ANY PREJUDGMENT REMEDY WHICH THE PAYEE OR ITS SUCCESSORS OR ASSIGNS MAY DESIRE
TO USE.
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IN WITNESS WHEREOF, the Company has executed and delivered this Note
as of July 26, 2006 with an effective date as of the date first written above.
MEDICAL MEDIA TELEVISION, INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
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