DATED THIS 15th DAY OF September 2000
(1) THE ROARING WATER BAY SPIRITS COMPANY LIMITED
and
(2) ▇▇▇▇▇▇ WHOLESALE LIMITED
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DISTRIBUTION AGREEMENT
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
SOLICITORS
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇
DATED THIS DAY OF 2000
PARTIES:
1 'The Manufacturer': THE ROARING WATER BAY SPIRITS COMPANY LIMITED a
corporation organised and existing under the laws of Ireland, whose
registered office is at ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
2 'The Distributor': ▇▇▇▇▇▇ WHOLESALE LIMITED a company organised and
existing under the laws of Ireland.
RECITALS:
(A) The Manufacturer manufactures vodka beverages including in particular "▇▇▇▇
Vodka" which said products are hereinafter cumulatively defined and
referred to as "the Products".
(B) The Distributor has considerable selling and distribution experience in the
Territory and the Manufacturer wishes that the Distributor act as the
Manufacturer's exclusive and duly authorised Distributor for the Products
therein.
OPERATIVE PROVISIONS:
1. INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires:
'FORCE MAJEURE' means, in relation to either party, any
circumstances beyond the reasonable control of
that party (including, without limitation, any
strike, lock-out or other form of industrial
action)
'INTELLECTUAL PROPERTY' means any patent, copyright, registered design,
trademark or other industrial or
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intellectual property right subsisting or which
the Manufacturer may wish to assert in the
Territory or which the Manufacturer may wish to
assert in respect of the Products.
'INVOICE VALUE' means the sum invoiced by the Manufacturer to the
Distributor in respect of the Products, less any
value added tax (or other taxes, duties or levies)
and any amounts for transport or insurance
included in the invoice.
'PRODUCTS' means, subject as provided in clause 3.2, such of
the products listed in Schedule 1 as are at the
date of the Agreement in the range of products
manufactured by or for the Manufacturer, and such
other products as may from time to time be agreed
in writing by the parties.
'RESTRICTED INFORMATION' means any information which is disclosed to the
Distributor by the Manufacturer pursuant to or in
connection with this Agreement (whether orally or
in writing, and whether or not such information is
expressly stated to be confidential or marked as
such).
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'TERRITORY' means the Republic of Ireland excluding for the
avoidance of doubt any shops (whether duty free
shops or otherwise) located in airports or ferry
terminals (but not including public houses
therein) and excluding any aeroplanes situate in
or emanating from or travelling to the Republic of
Ireland.
'TRADE MARKS' (a) any and all trade marks registered in the
name of the Manufacturer; and
(b) such other trade marks as are used by the
Manufacturer on or in relation to the
Products at any time during this Agreement
'YEAR OF THIS AGREEMENT' means unless otherwise expressly provided a period
of 12 months from the date of this Agreement and
each subsequent consecutive period of 12 months
during the period of this Agreement.
1.2 Any reference in this Agreement to 'writing' or cognate expressions
includes a reference to telex, cable, facsimile transmission or comparable
means of communication.
1.3 Any reference in this Agreement to any provision of a statute shall be
construed as a reference to that provision as amended, re-enacted or
extended at the relevant time.
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1.4 The headings in this Agreement are for convenience only and shall not
affect its interpretation.
2. APPOINTMENT OF DISTRIBUTOR
2.1 The Manufacturer hereby appoints the Distributor as its sole and exclusive
distributor for the sale of the Products in the Territory, and the
Distributor agrees to act in that capacity, subject to the terms and
conditions of this Agreement.
2.2 The Distributor shall be entitled to describe itself as the Manufacturer's
'Authorised Distributor' for the Products, but shall not hold itself out
as the Manufacturer's agent for sales of the Products or as being entitled
to bind the Manufacturer in any way.
2.3 The parties have agreed on the target of rates which the distributor shall
endeavour to achieve and those targets are as set out in the Second
Schedule hereto. The price at which the Products shall be invoiced to the
Distributor shall be set out therein.
2.4 The Distributor shall not:
2.4.1 seek customers, establish any branch or maintain any distribution
depot for the Products in any country which is outside the
Territory or
2.4.2 sell the Products to any customer in any country which is:
(a) outside the Territory or
(b) within the Territory if to the knowledge of the Distributor
that
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customer intends to resell the Products in any country
which is outside the Territory.
3. SUPPLY OF THE PRODUCTS
3.1 Subject as provided in clauses 3.2 hereafter the Manufacturer shall supply
the Product to the Distributor on such reasonable terms as the parties
shall agree.
3.2 The Manufacturer shall not be under any obligation to continue the
manufacture of all or any of the Products, and shall be entitled to make
such alterations to the specifications of the Products as it may think fit.
3.3 Each order for the Products shall constitute a separate contract, and any
default by the Manufacturer in relation to any one order shall not entitle
the Distributor to treat this Agreement as terminated.
3.4 The Distributor shall, in respect of each order for the Products to be
supplied hereunder, be responsible for:
3.4.1 ensuring the accuracy of the order;
3.4.2 providing the Manufacturer with any information which is necessary
in order to enable the Manufacturer to fulfil the order and to
comply with all labelling, marketing and other applicable legal
requirements in the Territory; and
3.4.3 obtaining any necessary import licences, certificates of origin or
other requisite documents, and paying all applicable customs, duties
and taxes in respect of the importation of the Products into the
Territory and their resale in the Territory.
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3.5 The Distributor shall give the Manufacturer not less than 2 months' written
notice of its estimated requirements of the Products for each month, and
shall promptly notify the Manufacturer of any changes in circumstances
which may affect its requirements.
3.6 Upon receipt and confirmation of each order the Manufacturer shall as soon
as is practicable inform the Distributor of the Manufacturer's estimated
delivery date for the consignment. The Manufacturer shall use all
reasonable endeavours to meet the delivery date, but time of delivery shall
not be of the essence and accordingly the Manufacturer shall have no
liability to the Distributor if, notwithstanding such endeavours, there is
any delay in delivery.
3.7 The title to any consignment of the Products shall not pass to the
Distributor until the Manufacturer has received payment in full of the
price therefor.
3.8 Risk of loss or of damage to any consignment of the Product shall pass to
the Distributor from the time the Distributor collects the Product from the
Manufacturer's premises.
4. PAYMENT FOR THE PRODUCTS
4.1 All Products to be supplied by the Manufacturer pursuant to this Agreement
shall be sold on an ex works basis, and accordingly the Distributor shall,
in addition to the price, be liable for arranging and paying all costs of
transport and insurance.
4.2 Where the Manufacturer agrees to arrange for transport and insurance as
agent for the Distributor, the Distributor shall reimburse to the
Manufacturer the full costs thereof and all the applicable provisions of
this Agreement shall apply with respect to the payment of such costs as
they apply to payment of the price of the Products.
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4.3 Subject to the provisions of paragraph 2.4 above and to the invoice
costings set out in the second schedule hereto, the prices for all Products
to be supplied hereunder shall be the Manufacturer's ex works list prices
from time to time, inclusive of packaging costs, and accordingly the
Manufacturer shall:
4.3.1 supply to the Distributor up to date copies of all price lists for
the Products from time to time; and
4.3.2 give the Distributor not less than 3 month's notice in writing of
any alteration in such list prices, and the prices as so altered
shall apply to all Products delivered on and after the applicable
date of the increase, including outstanding orders.
4.4 If the Distributor fails to pay the price for any Products on or before the
last day of the month following the month of delivery of the Product by the
Manufacturer to the Distributor or on or before the last day of the
calendar month following the date of collection of the Product by the
Distributor, the Manufacturer will be entitled (without prejudice to any
other right or remedy it may have) to:
4.4.1 cancel or suspend any further delivery to the Distributor under any
order;
4.4.2 sell or otherwise dispose of any Products which are subject of any
order by the Distributor, whether or not appropriated thereto, and
apply the proceeds of sale to the overdue payment.
4.5 All prices for the Products are exclusive of any applicable value added tax
(VAT) or any other sales tax, for which the Distributor shall be
additionally liable.
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4.6 All payments shall be made by the Distributor in Irish Pounds (or Euro) to
the Manufacturer.
5. MARKETING OF THE PRODUCTS
5.1 The Distributor shall use its best endeavours to promote the sale of the
Products throughout the Territory and, subject to compliance by the
Manufacturer of its obligations under clause 3.1 to satisfy market demand
therefor.
5.2 The Distributor and the Manufacturer shall together consult with each other
periodically to discuss the implementation of marketing proposals in
respect of the products. The Distributor shall be entitled to resell the
Products to its customers at such prices as each of the parties shall
agree.
5.3 The Distributor shall maintain such stocks of the Products as may be
necessary to meet its customers' requirements.
5.4 In connection with the distribution and marketing of the Products the
Distributor shall:
5.4.1 make clear, in all dealings with customers and prospective
customers, that it is acting as distributor of the Products and
not as agent of the Manufacturer;
5.4.2 comply with all legal requirements from time to time in force
relating to the storage and sale of the Products;
5.4.3 from time to time consult with the Manufacturer's representatives
for the purpose of assessing the state of the market in the
Territory and permit them to inspect any premises used by the
Distributor in connection with the sale of Products;
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5.4.4 use in relation to the Products only such advertising,
promotional and selling materials as are approved in writing by
the Manufacturer;
5.4.5 the Manufacturer will have primary responsibility for the
marketing of the product and will liase with the Distributor on a
quarterly basis in relation to the advertising, marketing and
promotion of the product.
6. SUPPORT AND TRAINING
6.1 The Manufacturer shall from time to time provide the Distributor with such
samples, catalogues, brochures and up to date information concerning the
Products as the Manufacturer may consider appropriate or as the Distributor
may reasonably require in order to assist the Distributor with the sale of
the Products in the Territory, and the Manufacturer shall endeavour to
answer as soon as practicable any technical enquiries concerning the
Products which are made by the Distributor or its customers.
6.2 In any case where employees of either party visit the premises of the other
for the purposes of this Agreement, the first mentioned party shall:
6.2.1 procure that each such employee complies with all security,
safety and other regulations which apply to or are in force at
the other party's premises; and
6.2.2 indemnify the other party against any direct damage to property
of the other party which is caused by any act or omission of any
such employee at the other party's premises.
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7. INTELLECTUAL PROPERTY
7.1 The Manufacturer hereby authorises the Distributor to use the Trade
Marks in the Territory on or in relation to the Products for the purposes
only of exercising its rights and performing its obligations under this
Agreement.
7.2 The Distributor shall ensure that each reference to and use any of the
Trade Marks by the Distributor is in a manner from time to time approved by
the Manufacturer and accompanied by an acknowledgement, in a form approved
by the Manufacturer, that the same is a trade ▇▇▇▇ (or registered trade
▇▇▇▇) of the Manufacturer.
7.3 The Distributor shall not:
7.3.1 make any modifications to the Products or their packaging;
7.3.2 alter, remove or tamper with any Trade Marks, numbers, or other
means of identification used on or in relation to the Products;
7.3.3 use any of the Trade Marks in any way which might prejudice
their distinctiveness or validity or the goodwill of the
Manufacturer therein;
7.3.4 use in relation to the Products any trade marks other than the
Trade Marks without obtaining the prior written consent of the
Manufacturer; or
7.3.5 use in the Territory any trade marks or trade names so
resembling any trade ▇▇▇▇ or trade names of the Manufacturer as
to be likely to cause confusion or deception.
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7.4 Except as provided in clause 7.1 above the Distributor shall have no
rights in respect of any trade names or trade marks used by the
Manufacturer in relation to the Products.
7.5 The Distributor shall, at the expense of the Manufacturer, take all such
steps as the Manufacturer may reasonably require to assist the
Manufacturer in maintaining the validity and enforceability of the
Intellectual Property of the Manufacturer during the term of this
Agreement.
7.6 The Distributor shall at the request of the Manufacturer execute such
registered user agreements of licences in respect of the use of the Trade
Marks in the Territory as the Manufacturer may reasonably require,
provided that the provisions thereof shall not be more onerous or
restrictive than the provisions of this Agreement.
7.7 Without prejudice to the right of the Distributor or any third party to
challenge the validity of any Intellectual Property of the Manufacturer,
the Distributor shall not do or authorise any third party to do any act
which would or might invalidate or be inconsistent with any Intellectual
Property of the Manufacturer and shall not omit or authorise any third
party to omit to do any act which, by its omission, would have that effect
or character.
7.8 The Distributor shall promptly and fully notify the Manufacturer of any
actual, threatened or suspected infringement in the Territory of any
Intellectual Property of the Manufacturer which comes to the Distributor's
notice, and of any claim by any third party so coming to its notice that
the importation of the Products into the Territory, or their sale therein,
infringes any rights of any other person, and the Distributor shall at the
request and expense of the Manufacturer do all such things as may be
reasonably required to assist the Manufacturer in taking or resisting any
proceedings in relation to any such infringement or claim.
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8. CONFIDENTIALLY
8.1 Except as provided by clauses 8.2 and 8.3, the Distributor shall at all
times during the continuance of this Agreement and after its termination;
8.1.1 use its best endeavours to keep all Restricted Information
confidential and accordingly not to disclose any Restricted
Information to any other person; and
8.1.2 not use any Restricted Information for any purpose other than the
performance of the obligations under this Agreement.
8.2 Any Restricted Information may be disclosed by the Distributor to:
8.2.1 any customers or prospective customers;
8.2.2 any governmental or other authority or regulatory body; or
8.2.3 any employees of the Distributor or of any of the aforementioned
persons,
to such extent only as is necessary for the purposes contemplated by this
Agreement, or as is required by law and subject in each case to the
Distributor using its best endeavours to ensure that the person in
question keeps the same confidential and does not use the same except for
the purposes for which the disclosure is made.
8.3 Any Restricted Information may be used by the Distributor for any purpose,
or disclosed by the Distributor to any other person, to the extent only
that:
8.3.1 it is at the date hereof, or hereafter becomes, public knowledge
through no fault to the Distributor (provided that in doing so the
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Distributor shall not disclose any Restricted Information which
is not public knowledge); or
8.3.2 it can be shown by the Distributor, to the reasonable
satisfaction of the Manufacturer, to have been known to it prior
to its being disclosed by the Manufacturer to the Distributor.
9. FORCE MAJEURE
9.1 If either party is affected by Force Majeure it shall forthwith notify the
other party of the nature and extent hereof.
9.2 Neither party shall be deemed to be in breach of this Agreement, or
otherwise be liable to the other, by reason of any delay in performance,
or non-performance, of any of its obligations hereunder to the extent that
such delay or non-performance is due to any Force Majeure of which it has
notified the other party; and the time for performance of that obligation
shall be extended accordingly.
9.3 If the Force Majeure in question prevails for a continuous period in
excess of six months, the parties shall enter into bona fide discussions
with a view to alleviating its effects, or to agreeing upon such
alternative arrangements as may by fair and reasonable.
10. DURATION AND TERMINATION
10.1 This Agreement reflects the arrangements which came into force on 15th
September, 1998 (hereinafter called "the commencement date") and subject
as provided herein shall continue in force for a period of five years from
then and thereafter shall continue on a year to year basis until
termination by either party, subject to termination by either party on
giving twelve months notice in
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writing to the other party, such notice to be served on the receiving
party on the appropriate anniversary day of the commencement date.
10.2 Either party shall be entitled forthwith to terminate this Agreement by
written notice to the other if:
10.2.1 that other party commits any material, significant and
fundamental breach of any of the provisions of this Agreement
and, in the case of a breach capable of remedy, fails to remedy
the same within 30 days after receipt of a written notice giving
full particulars of the breach and requiring it to be remedied;
10.2.2 an encumbrancer takes possession or a receiver is appointed over
any of the property or assets of that other party;
10.2.3 that other party makes any voluntary arrangement with its
creditors or becomes subject to an administration order;
10.2.4 that other party goes into liquidation (except for the purposes
or amalgamation or reconstruction and in such manner that the
company resulting therefrom effectively agrees to be bound by or
assume the obligations imposed on that other party under this
Agreement);
10.2.5 anything analogues to any of the foregoing under the law of any
jurisdiction occurs in relation to that party; or
10.2.6 that other party ceases, or threatens to cease, to carry on
business.
10.3 For the purposes of clause 10.2.1, a breach shall be considered capable of
remedy if the party in breach can comply with the provision in question in
all
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respects other than as to the time of performance (provided that time of
performance is not of the essence).
10.4 Any waiver by either party of a breach of any provision of this Agreement
shall not be considered as a waiver of any subsequent breach of the same
or any other provision thereof.
10.5 The rights to terminate this Agreement given by this clause shall be
without prejudice to any other right or remedy of either party in respect
of the breach concerned (if any) or any other breach.
11. CONSEQUENCES OF TERMINATION
11.1 Upon the termination of this Agreement for any reason:-
11.1.1 the Manufacturer shall be entitled (but not obliged) to
repurchase from the Distributor all or part of any stocks of the
Products then held by the Distributor at its Invoice value
provided that:
(a) the Manufacturer shall be responsible for arranging and for
the cost of, transport and insurance; and
(b) the Distributor may sell stock for which it has accepted
orders from customers prior to the date of termination, or
in respect of which the Manufacturer does not, by written
notice given to the Distributor within 7 days after the date
of termination exercise its right to repurchase, and for
those purposes and to that extent the provisions of this
Agreement shall continue in full force and effect;
11.1.2 the Distributor shall at its own expense within 30 days send to
the Manufacturer or otherwise dispose of in accordance with the
15
directions of the Manufacturer all samples of the Products and any
advertising, promotional or sales material relating to the Products
then in the possession of the Distributor.
11.1.3 the Distributor shall cease to promote, market or advertise the
Products or to make any use of the Trade Marks other than for the
purpose of selling stock in respect of which the seller does not
exercise its right of repurchase;
11.1.4 the Distributor shall at its own expense join with the Manufacturer
in procuring the cancellation of any registered user agreements
entered into pursuant to clause 7.6;
11.1.5 the provisions of clauses 8 shall continue in force.
12. NATURE OF AGREEMENT
12.1.1 Each of The Parties hereto shall be entitled to perform any of the
obligations undertaken by it and to exercise any of the rights
granted to it under this Agreement through any other company which
at the relevant time is its holding company of subsidiary (as
defined by S155 of the Companies Act 1963) or the subsidiary of any
such holding company and any act or omission of any such company
shall for the purposes of this Agreement be deemed to be the act or
omission of the Manufacturer.
12.1.2 the Manufacturer shall maintain a full and adequate policy of
product liability insurance in respect of all of the Products
manufactured by our supplied to the Distributor, such policy of
insurance to be maintained with a level and degree of cover which
will in all respects be satisfactory and acceptable to the
Distributor's insurance advisors from time to time and the
Manufacturer hereby indemnifies the
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Distributor against all actions, costs, claims, expenses,
proceedings and remand arising directly or indirectly as a result
of any third party claim being made against the Distributor in
respect of any defective products or products of unmarketable
quality being manufactured by or made available to the Distributor.
12.2 This Agreement is personal as between the parties hereto and the
Manufacturer may not assign this Agreement or the rights or
obligation arising hereunder.
12.3 This Agreement is personal to the Distributor, which may not
without the written consent of the Manufacturer, assign, mortgage,
charge (otherwise than by floating charge) or dispose of any of its
rights hereunder, or sub-contract of otherwise delegate any of its
obligations hereunder.
12.4 It is agreed that in the event of the Manufacturer selling the
"▇▇▇▇ Vodka" brand during this Agreement, the Distributor will be
entitled to continue to sell and distribute the products for the
following eighteen months or (at its manufacturer's sole
discretion) be compensated by an amount equivalent to the Gross
Margin earned on the previous 15 months sale of ▇▇▇▇ brands.
12.5 If any provision of this Agreement is held by any court or other
competent authority to be void or unenforceable in whole or in
part, this Agreement shall continue to be valid as to the other
provisions thereof and the remainder of the affected provision.
13. ARBITRATION AND PROPER LAW
13.1 Any dispute arising out of or in connection with this Agreement
shall be referred to the arbitration of a single arbitrator
appointed by agreement
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between the parties or, in default of agreement, nominated on the
application of either party by the President for the time being of The Law
Society.
13.2 This Agreement shall be governed by and construed in all respects in
accordance with the Laws of Ireland and each party hereby submits to the
non-exclusive jurisdiction of the Irish Courts.
14. NOTICES AND SERVICE
14.1 Any notice or other information required or authorised by this Agreement
to be given by either party to the other may be given by hand or sent (by
first class pre-paid post, telex, cable, facsimile transmission or
comparable means of communication) to the other party at the address
referred to in clause 14.4.
14.2 Any notice or other information given by post pursuant to clause 14.1
which is not returned to the sender as undelivered shall be deemed to have
been given on the [ ] day after the envelope containing the same was so
posted; and proof that the envelope containing any such notice of
information was properly addressed, pre-paid, registered and posted, and
that it has not been so returned to the sender, shall be sufficient
evidence that such notice or information has been duly given.
14.3 Any notice or other information sent by telex, cable, facsimile
transmission or comparable means of communication shall be deemed to have
been duly sent on the date of transmission, provided that a confirming
copy thereof is sent by first class pre-paid post to the other party at
the address referred to in clause 14.4 within 24 hours after transmission.
14.4 Service of any legal proceedings concerning or arising out of this
Agreement shall be effected by causing the same to be delivered to [the
Company Secretary of] the party to be served at its principal place of
business (in the case of the Manufacturer) or its registered office (in
the case of the
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Distributor), or to such other address as may from time to time be notified in
writing by the party concerned.
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SCHEDULE 1
PRODUCTS
(1) ▇▇▇▇ Vodka (Original) 12 x 700 ml Bottles
(2) ▇▇▇▇ Vodka (Strong) 12 x 1.0 Litre Bottles
(3) ▇▇▇▇ Vodka (Trinity) 6 x 3 x 200 ml Bottles
SCHEDULE 2
TARGETS
(1) (2) (3)
Year 9 Litre Cases Aggregate Invoice
Value (IRL)
1 (15/9/98 - 14/9/99) 10,000 IRL400,000
2 (15/9/99 - 14/9/2000) 20,000 IRL800,000
3 (15/9/2000 - 14/9/2001) 40,000 IRL1,600,000
4 (15/9/2001 - 14/9/2002) 50,000 IRL2,000,000
5 (15/9/2002 and each
twelve month period thereafter 60,000 IRL2,400,000
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SIGNED on behalf of
THE ROARING WATER BAY SPIRITS COMPANY LIMITED
in the presence of:-
/s/ [illegible]
/s/ [illegible]
SIGNED on behalf of
▇▇▇▇▇▇ WHOLESALE LIMITED
in the presence of:-
/s/ [illegible]
/s/ [illegible]
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