Contract
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Exhibit
10.5
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Norwegian
Shipbrokers’ Association’s Memo-
randum
of Agreement for sale and purchase of
ships
adopted by The Baltic and International
Maritime
Council (BIMCO) in 1956
Code-name
SALEFORM
1993
Revised
1966, 1983 and 1986/87
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Dated:
25th
June
2007
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Vitol
Energy (Bermuda) Ltd. hereinafter
called the Sellers, have agreed to sell, and Keswick Maritime
Limited
hereinafter
called the Buyers, have agreed to buy
Name: ‘KESWICK’
Classification
Society/Class: Bureau Veritas (BV)
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Built: 2003
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By:
Asakawa Shipbuilding Co.
Ltd.
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Flag:
Singapore
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Place
of Registration:
Singapore
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Call
sign: 9VGN7
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GRT/NRT:
7,884 tons / 2,977
tons
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hereinafter
called the Vessel, on the following terms and conditions:
Definitions
"Banking
days” are days on which banks are open both in the country of the currency
stipulated for the Purchase Price in Clause 1 and in the place of closing
stipulated in Clause 8.
"In
writing" or "written" means a letter handed over from the Sellers to the Buyers
or vice versa, a registered letter, telex, telefax or other modern form of
written communication.
"Classification
Society" or "Class" means the Society referred to in line 4.
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1.
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Purchase
Price
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US$
26,000,000 (United States Dollars Twenty Six Million). 1 (one)
percent sale commission to be paid by Seller to X.X Xxxxxx Shipbrokers
Ltd.
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2.
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Deposit
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As
a
security for the correct fulfillment of this Agreement the
Buyers MC Shipping Inc. shall place a
corporate guarantee equal to pay a deposit of 10%
(ten
per
cent) of the Purchase Price within
3 (three) London banking
days from the time the Memorandum of Agreement has been
signed by both parties and exchanged by fax. date of this
Agreement. This deposit shall be replaced
by a cash deposit three months prior to
the earliest delivery date and
held with the Sellers nominated bank
and
held
by them in a an interest
bearing joint account for the Sellers
and the Buyers, to be released in accordance with
joint written instructions of the Sellers and Buyers. Interest, if any, to
be credited to the Buyers, Any fee charged for holding
said deposit shall be borne equally by the Sellers and the
Buyers. Bank charge for remitting the deposit from the joint
account to the Sellers account to be borne by the Buyers.
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3.
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Payment
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The
said
Purchase Price shall be paid in full free of bank charges to the Sellers
nominated bank:- Details TBA
on
delivery of the vessel, but not later than 3 banking days after the
vessel is in every respect physically ready for delivery in accordance with
the
terms and conditions of this Agreement and Notice of Readiness has been given
in
accordance with Clause 5.
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4.
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Inspections
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a)*
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The
Buyers have inspected and accepted the Vessel's classification records.
The Buyers have also inspected the Vessel
at/
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*
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4a)
and 4b) are alternatives; delete whichever is not applicable. In
the
absence of deletions, alternative 4a) to
apply.
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5.
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Notices,
time and place of delivery
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a)
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The
Sellers shall keep the Buyers well informed of the Vessel's itinerary
and
shall provide the Buyers with 15, 7,
and 3 days
approximate notice of the estimated time of arrival at the intended
place of
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b)
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The
Vessel shall be delivered and taken over
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Expected
time of delivery: Between
01st June
2008 and 31st
July 2008
It
is anticipated that the vessel shall be delivered on or about 27th June
2008
Date
of
cancelling (see Clauses 5 c), 6b) (iii) and
14):31st
July 2008
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c)
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If
the Sellers anticipate that, notwithstanding the exercise of due
diligence
by them, the Vessel will not be ready for delivery by the cancelling
date they may notify the Buyers in writing stating the date when they
anticipate that the Vessel will be ready for delivery and propose a
new cancelling date. Upon receipt of such notification the Buyers
shall
have the option of either cancelling this Agreement in accordance
with Clause 14 within 7 running days of receipt of the notice
or of accepting the new date as the new cancelling date. If
the Buyers have not declared their option within 7 running days of
receipt of the Sellers' notification or if the Buyers accept the new
date, the date proposed in the Sellers' notification shall be deemed
to be the new cancelling date and shall be substituted for the
cancelling date stipulated in line
61.
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If
this
Agreement is maintained with the new cancelling date all other terms and
conditions hereof including those contained in Clauses 5 a) and 5
c) shall remain unaltered and in full force and effect. Cancellation or
failure to cancel shall be entirely without prejudice to any claim for
damages the Buyers may have under Clause 14 for the Vessel not being
ready by the original cancelling date.
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d)
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Should
the Vessel become an actual, constructive or compromised total loss
before
delivery the deposit together with interest earned shall be released
immediately to the Buyers whereafter this Agreement shall be null and
void.
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6.
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Drydocking/Divers
Inspection
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a)**
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b)**
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(i) The
Vessel is to be delivered without drydocking. However, the Buyers
shall have the right at their expense to arrange for an underwater
inspection by a diver approved by the Classification Society prior to
the delivery of the Vessel. The Sellers shall at their cost make the
Vessel available for such inspection. The extent of the inspection
and
the conditions under which it is performed shall be to the
satisfaction of the Classification Society. If the conditions at the
port of delivery are unsuitable for such inspection, the Sellers
shall make the Vessel available at a suitable alternative place near
to
the delivery Port.
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(ii) If
the rudder, propeller, bottom or other underwater parts below the deepest load
line are found broken, damaged or defective so as to affect the Vessel's
class, then unless repairs can be carried out afloat to the satisfaction of
the Classification Society, the Sellers shall arrange for the Vessel to be
drydocked at their expense for inspection by the Classification Society of
the Vessel's underwater parts below the deepest load line, the extent of
the inspection being in accordance with the Classification Society's rules.
If
the rudder, propeller, bottom or other underwater parts below the deepest
load line are found broken, damaged or defective so as to affect the
Vessel's class, such defects shall be made good by the Sellers at their
expense to the satisfaction of the Classification Society without
condition/recommendation*. In such event the Sellers are to pay also for the
cost of the underwater inspection and the Classification Society's
attendance.
(iii) If
the Vessel is to be drydocked pursuant to Clause 6 b) (ii) and no
suitable dry-docking facilities are available
at the port of delivery, the Sellers shall take the Vessel
to a port where suitable drydocking facilities are available, whether within
or
outside the delivery range as per Clause 5 b). Once drydocking
has taken place the Sellers shall deliver the Vessel at a port within the
delivery range as per Clause 5 b) which shall, for the purpose of this
Clause, become the new port of delivery. In such event the cancelling
date provided for in Clause 5 b) shall be extended by the additional time
required for the drydocking and extra steaming, but limited to a maximum of
14
running days.
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c)
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If
the Vessel is drydocked pursuant to Clause 6 a) or 6 b)
above
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(i) the
Classification Society may require survey of the tailshaft system, the extent
of
the survey being to the satisfaction of the Classification surveyor. If such
survey is not required by the Classification Society, the Buyers shall have
the
right to require the tailshaft to be drawn and surveyed by the Classification
Society, the extent of the survey being in accordance with the Classification
Society's rules for tailshaft survey and consistent with the current stage
of
the Vessel's survey cycle. The Buyers shall declare whether they require the
tailshaft to be drawn and surveyed not later than by the completion of the
inspection by the Classification Society. The drawing and refitting of the
tailshaft shall be arranged by the Sellers. Should any parts of the tailshaft
system be condemned or found defective so as to affect the Vessel's class,
those
parts shall be renewed or made good at the Sellers' expense to the satisfaction
of the Classification Society without condition/recommendation*.
(ii) the
expenses relating to the survey of the tailshaft system shall be borne by the
Buyers unless the Classification Society requires such survey to be carried
out,
in which case the Sellers shall pay these expenses. The Sellers shall also
pay
the expenses if the Buyers require the survey and parts of the system are
condemned or found defective or broken so as to affect the Vessel's
class*.
(iii) the
expenses in connection with putting the Vessel in and taking her out of drydock,
including the drydock dues and the Classification Society's fees shall be paid
by the Sellers if the Classification Society issues any
condition/recommendation* as a result of the survey or if it requires survey
of
the tailshaft system. In all other cases the Buyers shall pay the aforesaid
expenses, dues and fees.
(iv) the
Buyers' representative shall have the right to be present in the drydock, but
without interfering with the work or decisions of the Classification
surveyor.
(v) the
Buyers shall have the right to have the underwater parts of the Vessel cleaned
and painted at their risk and expense without interfering with the Sellers'
or
the Classification surveyor's work, if any, and without affecting the Vessel's
timely delivery. If, however, the Buyers' work in drydock is still in progress
when the Sellers have completed the work which the Sellers are required to
do,
the additional docking time needed to complete the Buyers' work shall be for
the
Buyers' risk and expense. In the event that the Buyers' work requires such
additional time, the Sellers may upon completion of the Sellers' work tender
Notice of Readiness for delivery whilst the Vessel is still in drydock and
the
Buyers shall be obliged to take delivery in accordance with Clause 3,
whether the Vessel is in drydock or not and irrespective of Clause 5
b).
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*
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Notes,
if any, in the surveyor's report which are accepted by the Classification
Society without condition/recommendation are not to be taken into
account.
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**
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6
a) and 6 b) are alternatives; delete whichever is not applicable.
In the
absence of deletions, alternative 6 a) to
apply.
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7.
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Spares/bunkers,
etc.
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The
Sellers shall deliver the Vessel to the Buyers with everything belonging to
her
on board and on Shore. All spare parts and spare equipment including spare
tail-end shaft(s) and/or spare propeller(s)/propeller blade(s), if any,
belonging to the Vessel at the time of inspection used or unused, whether on
board or not shall become the Buyers' property, but spares on order are to
be Included excluded. Forwarding charges, if any, shall be
for the Buyers' account. The Sellers are not required to replace spare parts
including spare tail-end shaft(s) and spare propeller(s)/propeller blade(s)
which are taken out of spare and used as replacement prior to delivery, but
the
replaced items shall be the property of the Buyers. The radio installation
and
navigational equipment shall be included in the sale without extra payment
if they are the property of the Sellers. Unused
stores and provisions, shall be included in the sale
and be taken over by the Buyers without extra payment.
The
Sellers have the right to take ashore crockery, plates, cutlery, linen and
other
articles bearing the Sellers' flag or name, provided they replace same with
similar unmarked items. Library, forms, etc., exclusively for use in the
Sellers' vessel(s), shall be excluded without compensation. Captain's, Officers'
and Crew's personal belongings including the slop chest are to be excluded
from
the sale, as well as the following additional items (including items on
hire):
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Crew Training Systems
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Logbooks (but Buyers to have right to take copies)
The
Buyers shall take over the remaining bunkers and unused
lubricating oils in storage tanks and sealed drums and
pay the Sellers’ last purchased price
including all discounts on the lube oil prices
supported with vouchers. Bunkers and the property of
the Charterers and no payment shall be made for these between Buyers and
Sellers. current net market price (excluding barging
expenses) at the port
Payment
under this Clause shall be made at the same time and place and in the same
currency as the Purchase Price.
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8.
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Documentation
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The
place
of closing: Imabari,
Japan
In
exchange for purchase money payment of the
Purchase Price the Sellers are to provide
shall furnish the Buyers
with those documents that Buyers require to transfer title and
register vessel under her new flag.
Documentation
to be mutually agreed and Incorporated into the Memorandum of Agreement by
way
of addendum.
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9.
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Encumbrances
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The
Sellers warrant that the Vessel, at the time of delivery, is free from all
charters, encumbrances, mortgages and maritime liens or any other debts
whatsoever. The Sellers hereby undertake to indemnify the Buyers against all
consequences of claims made against the Vessel which have been incurred prior
to
the time of delivery.
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10.
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Taxes,
etc.
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Any
taxes, fees and expenses in connection with the purchase and registration under
the Buyers' flag shall be for the Buyers' account, whereas similar charges
in
connection with the closing of the Sellers' register shall be for the Sellers'
account.
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11.
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Condition
on delivery
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The
Vessel with everything belonging to her shall be at the Sellers' risk and
expense until she is delivered to the Buyers, but subject to the terms and
conditions of this Agreement she shall be delivered and taken
over substantially in the same condition as when
inspected as she was at
the time of inspection, fair
wear and tear excepted with the cargo tanks under inert gas or last
cargo vapours in the Sellers’ option and with any equipments and spare parts as
when inspected and complying with the minimum class
requirements. Spare parts which are taken out of and used as
replacement after 28th
March and prior delivery shall not be replaced as long as the
Vessel meets minimum class
requirement.
All
class certificates to be clean and surveys are to be clean, valid and unextended
at the time of delivery for a minimum of 6 (six) months. All national
and international trading certificates and survey to be clean, valid and
unextended at the time of delivery, free of recommendations and without
subjects. All equipment included in Class item to be in working order
on delivery.
Vessel
is to be delivered to the Buyers simultaneously or shortly after the completion
of her dry dock and special survey and with delivery into the time charter
outlined below. Sellers to provide the specification of the special
survey work planned prior to dry docking.
"Inspection"
in this Clause 11, shall mean the Buyers' inspection according to Clause 4
a) or 4 b), if applicable, or the Buyers' inspection prior to the
signing of this Agreement. If the Vessel is taken over without inspection,
the
date of this Agreement shall be the relevant date.
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*
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Notes,
if any, in the surveyor's report which are accepted by the Classification
Society without condition/recommendation are not to be taken into
account.
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12.
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Name/markings
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Upon
delivery the Buyers have the
right undertake to change the name of the Vessel
and alter funnel markings.
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13.
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Buyers'
default
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Should
the deposit not be paid in accordance with Clause 2, the Sellers have the
right to cancel this Agreement, and they shall be entitled to claim
compensation for their losses and for all expenses incurred together with
interest.
Should
the Purchase Price not be paid in accordance with Clause 3, the Sellers
have the right to cancel the Agreement, in which case the deposit together
with
interest earned shall be released to the Sellers. If the deposit does not cover
their loss, the Sellers shall be entitled to claim further compensation for
their losses and for all expenses incurred together with interest.
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14
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Sellers'
default
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Should
the Sellers fail to give Notice of Readiness in accordance with Clause 5
a) or fail to be ready to validly complete a legal transfer by the date
stipulated in line 61 the Buyers shall have the option of cancelling this
Agreement provided always that the Sellers shall be granted a maximum of 3
banking days after Notice of Readiness has been given to make arrangements
for
the documentation set out in Clause 8. If after Notice of Readiness has
been given but before the Buyers have taken delivery, the Vessel ceases to
be
physically ready for delivery and is not made physically ready again in every
respect by the date stipulated in line 61 and new Notice of Readiness
given, the Buyers shall retain their option to cancel. In the event that the
Buyers elect to cancel this Agreement the deposit together with interest earned
shall be released to them immediately.
Should
the Sellers fail to give Notice of Readiness by the date stipulated in line
61 or fail to be ready to validly complete a legal transfer as aforesaid
they shall make due compensation to the Buyers for their loss and for all
expenses together with interest if their failure is due to proven negligence
and
whether or not the Buyers cancel this Agreement.
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15.
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Buyers'
representatives
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After
this Agreement has been signed by both parties and the deposit has been lodged,
the Buyers have the right to place
one two representatives
on board the Vessel at their sole risk and expense for a period
commencing after.
upon
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16.
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Arbitration
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a)*
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This
Agreement shall be governed by and construed in accordance with English
law and any dispute arising out of this Agreement shall be referred
to
arbitration in London in accordance with the Arbitration Acts
1950 and 1979 or
any statutory modification or re-enactment
thereof for the time being in force, one arbitrator being appointed
by
each party. On the receipt by one party of the nomination in
writing of the other party's arbitrator, that party shall appoint
their
arbitrator within fourteen days, failing which the decision of the
single
arbitrator appointed shall apply. If two arbitrators properly
appointed shall not agree they shall appoint an umpire whose decision
shall be final.
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b)*
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c)*
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16
a), 16 b) and 16 c) are alternatives, delete whichever is not
applicable. In the absence of deletions, alternative 16
a) to apply.
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SELLERS:
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BUYERS:
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NAME:
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NAME:
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